A full bench of the Pretoria high court has invalidated a 2019 report by Busisiwe Mkhwebane in which the former Public Protector made damning findings against then land reform minister Gugile Nkwinti over his involvement in illicit land deals in 2011.
Mkhwebane’s report dealt with the purchase of a farm in Limpopo for R97m that Nkwinti allegedly helped facilitate while he was minister of land reform. However, the court found Mkhwebane had refused to provide sufficient time for Nkwinti to respond to the report’s allegations and offered “no cogent reason” for her refusal to do so.
“There is simply no rational connection between the information that was before the [public protector] and the conclusions reached by her,” the court said.
The office of the public protector, now headed by Kholeka Gcaleka, has been ordered to pay the legal costs.
The investigation by Mkhwebane’s office followed a Sunday Times report in 2017 that Nkwinti, as land minister, had introduced Errol Present, a former ANC staff member from Luthuli House, to officials in his department. The department later bought the farm in Limpopo for R97m and handed it to Present and his business partners.
Mkhwebane found Nkwinti had unduly influenced his department to buy the Bekendvlei farm in 2011 so that it could be handed to Present.
Nkwinti succeeded in having the report set aside in 2011 after a high court challenge. Mkhwebane took the judgment on appeal, but the matter was heard after she had already left office due to her impeachment in 2023.
On Tuesday, the full bench confirmed the report should be set aside.
“It is not disputed that the subject matter of the complaint related to matters that had occurred some eight years earlier,” acting judge MO Ntuli wrote for the full bench.
“All records relating to the transactions in question were in the custody and control of the [department of land reform] and it is not unreasonable that Mr Nkwinti ... required some time to collate and consider those documents before having to respond to the [report’s allegations].”
There was “no cogent reason the PP [public protector] refused the request for an extension”. Furthermore, Nkwinti had moved to the department of water & sanitation by the time the allegations were made.
The high court recognised the public protector has a discretion during investigations, but “this must be done in a fair manner”. Denying a limited extension to an alleged wrongdoer wasn’t fair, it said.
The court also noted that the public protector’s report relied “entirely” on an interim report by Deloitte, whereas Deloitte’s final report “exonerated Mr Nkwinti”.
This further confirmed to the court that “there is simply no rational connection” that could have led to the report’s adverse findings against Nkwinti.
The court ordered the public protector’s office to pay Nkwinti’s legal costs. Gcaleka, indicated her office would “abide” by the court’s decision.
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