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Public Protector to appeal judgment that overturned her ruling on Vrede dairy farm, saying her investigation addressed the complaint laid
Public Protector Busisiwe Mkhwebane says her recent investigation of Public Enterprises Minister Pravin Gordhan is an example that all complaints sent to her office are treated equally and that every grievance receives attention.
Speaking to City Press, Mkhwebane said on Friday that no complaint received by her office should “remain hanging”.
“If the investigation exonerates you, that is fine. If there are findings, we say learn from that so that you do not continue doing the same thing,” she said.
Mkhwebane found Gordhan guilty of “improper conduct” over his approval of then deputy SA Revenue Service (Sars) commissioner Ivan Pillay’s early retirement and payout, and recommended that President Cyril Ramaphosa take disciplinary action against him.
But Gordhan swiftly hit back, saying that “in light of the most recent judgment in relation to the Vrede dairy project, (he) is of the view that (Mkhwebane) has once again erred in her findings and proposed remedial action”.
Gordhan said he would institute immediate review proceedings against the report.
Subsequent to the judgment by the North Gauteng High Court that overturned her Vrede ruling, the DA and the Council for the Advancement of the South African Constitution (Casac) called for Mkhwebane to be removed from office, arguing that she was not fit and proper.
Cosatu has also urged Ramaphosa to ignore all of her reports until her competency and trustworthiness have been ascertained.
Although she has only been Public Protector since 2016, Mkhwebane has already had a tough time with the courts on a couple of occasions.
Her sympathisers say that judicial officers often go overboard in their personalised criticism of her work.
They believe that her “original sin” was to tackle the banking industry.
They cite as an example a previous Absa bailout matter, in which she had conceded that the finding of the constitutional amendment could be set aside, but the North Gauteng High Court still continued to make remarks.
In a scathing ruling, it found that “the Public Protector’s aim was to amend the Constitution to deprive the Reserve Bank of its independent power to protect the value of the currency”.
Mkhwebane said on Friday that judges’ decisions were set aside very often, but none of the judicial officers were pushed to leave office.
She will be appealing the Vrede judgment, saying it would have been unreasonable to make findings against politicians when they were not implicated in the original complaint of 2013 or in the provisional findings by her predecessor, Thuli Madonsela.
“Nowhere, even in the provisional report, were politicians investigated,” Mkhwebane said, referring to allegations that the report was a whitewash to protect then Free State premier Ace Magashule (now ANC secretary-general) and the then agriculture MEC Mosebenzi Zwane (now a member of the ANC national executive committee).
“Magashule was even one of the people who was supposed to be interviewed on the behaviour of the head of department. But nowhere did it say you, Magashule, why did you not do the following, or you are implicated because you did the following.”
She said the complaint was purely about maladministration in procurement, and these issues related to the conduct of the head of department, not Magashule or even Zwane.
“It was never about whether Ace or Zwane abused their power, were corrupt, or took money. The investigation was done properly, per the facts and per the complaint,” she said, adding that the DA and Casac were trying to drag her office into the political space and use it to fight their battles.
Mkhwebane said she also informed the court that there was a second leg of the Vrede investigation under way, in which the role of politicians would be scrutinised.
The project beneficiaries and Magashule were already interviewed, and next in line would be Zwane, then former provincial agriculture MEC Mamiki Qabathe and the local mayor.
She said the probe was among current priorities, despite her initial intention to focus on backlogs, and despite being short-staffed.
“It is important and a priority. I feel bad pushing my investigators. They work hard. They leave in the early hours of the morning.”
Her office’s investigations did not rely on investigative journalism and books as evidence.
Instead, she said, “we need to go behind” the published allegations and “we need to interview the source”.
“Even if others say to us that we must use the (book), we won’t use the (book).” Authors should reveal their sources because “we have to interview their source and get documentary evidence. We do not go with untested information,” said Mkhwebane.
On her police case against State Security Minister Dipuo Letsatsi-Duba – who had also opened a case against her – she said the matter was pending a declaratory order in court, which the minister was possibly opposing.
The matter related to another complaint against Gordhan regarding his alleged creation of a rogue intelligence unit in Sars. Mkhwebane had requested access to the declassified report from state security.
“The law is clear. If I were her, I would bring that report because we are still waiting for it. And if she brings it, we can withdraw the matter.”
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