In a legal first that her office described as puzzling, Busisiwe Mkhwebane has become the first public protector to have a judge prevent the release of an investigation report by the state institution.
Pretoria High Court judge Cassim Sardiwalla on Thursday granted water affairs minister Gugile Nkwinti’s court bid to interdict Mkhwebane from releasing her report on his alleged abuse of power when he was in charge of rural development & land reform.
While Sardiwalla has yet to provide full reasons for his decision, he appears to have been swayed by Nkwinti’s argument that he was not given enough time to answer allegations against him .
The ruling, and its implication, is the latest controversy to embroil the public protector, who has found herself facing accusations that she is biased or does not understand her job.
Her previous and ongoing legal woes include an order to change the Reserve Bank’s mandate, which was successfully challenged.
Bank governor Lesetja Kganyago called her ruling a "flagrant disregard of the law".
In contrast, her predecessor Thuli Madonsela defeated two separate bids by former president Jacob Zuma to interdict the release of her reports.
The first was on upgrades to his Nkandla homestead, in which she found against him and ordered a return of state money spent on non-security upgrades, and the state capture report, which eventually led to the formation of the Zondo commission of inquiry.
Nkwinti’s success in temporarily halting the release of a report concerning his role in the 2011 acquisition of a farm in Limpopo, and allegations that he unethically assisted his friends buy the R97m property, may be part of a worrying trend.
The ruling comes as Mkhwebane is embroiled in increasingly ugly standoffs with state security minister Dipuo Lesatsi-Duba and public enterprises minister Pravin Gordhan over a so-called rogue unit at the SA Revenue Service (Sars), despite the allegations having been discredited and dismissed by the Nugent commission into Sars.
Mkhwebane and Lesatsi-Duba have laid criminal charges against each other over that investigation.
The Constitutional Court is still to rule on a Bank application that Mkhwebane be found to have abused her office in her June 2017 report on an apartheid-era bail-out given to Bankorp, which was later taken over by Absa. In that report Mkhwebane ordered that the constitutional mandate of the Reserve Bank be changed, sparking a fall in the rand.
She now admits she was wrong to order such changes, but maintains she was not abusing her office in doing so.
In Mkhwebane’s latest legal tussle, Nkwinti went to court to stop her report from being released, on the basis that he had only been given 18 days to respond to findingsthat he abused his position and was in breach of the executive ethics code.
During the hearing, it emerged that some of the evidence Mkhwebane used to make those findings came from her own CEO, Vusi Mahlangu, who previously worked as deputy director-general at the department of land reform.
Nkwinti said in court documents that he had fired Mahlangu for "irregular conduct" in relation to the very same farm that he was now being investigated over.
Nkwinti said that it was "extremely disconcerting to me" that Mahlangu was now employed at the public protector, which has undermined any suggestion that Mkhwebane properly managed an obvious conflict of interest.
Sardiwalla on Thursday agreed that Mkhwebane should have given Nkwinti more time to respond to the allegations against him, and found that her conduct in this regard violated the Public Protector Act.
His urgent order means that President Cyril Ramaphosa cannot act on remedial action ordered against Nkwinti, pending a challenge by the minister to the rationality and legality of Mkhwebane’s findings.
Nkwinti’s spokesperson, Sputnik Ratau, told Business Day the ruling showed that the judge agreed that Nkwinti should have been given more time.
"For the minister, it’s not a victory as such. He just wanted a chance to meaningfully engage with the public protector."
The public protector’s office said it was puzzled by the court’s ruling.
"It’s a pity we won’t immediately know the reasons as there is no written judgment yet."
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