South Africa’s Public Protector Hit with Second Punitive Costs Order

A South Africa court on Thursday awarded a second punitive costs order against the country’s top anti-corruption official, Public Protector Busisiwe Mkhwebane, after finding an investigation conducted by her office showed “gross negligence”.

Pretoria High Court Judge Ronel Tolmay ordered the Public Protector’s office to pay 85% of the costs of the Democratic Alliance and the Council for the Advancement of the SouthAfrican Constitution (Casac).

Both had challenged a report conducted by Mkhwebane’s office into an allegedly corrupt farm deal involving ruling party officials. The court also ruled that Mkhwebane should personally pay 7.5% of the legal fees incurred by both parties.

Oupa Segwale, a spokesman for the Public Protector, said on Thursday that Mkhwebane would appeal the judgment as the ruling on personal costs will instil fear in the anti-corruption office and prevent it from conducting investigations without fear or favour.

“She believes she has done this investigation in good faith. She does not just litigate haphazardly, she thinks long and hard about it,” Segwale said.

The decision nonetheless heightens scrutiny of Mkhwebane, an official who has been accused by President Cyril Ramaphosa of abusing her office after she said he was involved in serious misconduct linked to donations to his campaign for leadership of the ruling party.

In July, the Constitutional Court ordered Mkhwebane personally to pay legal fees, estimated at 900,000 rand ($59,000), after a report her office published in 2017 demanded the mandate of the Reserve Bank, the country’s central bank, be changed. A lower court said that report was flawed and had been published in “bad faith”.

The judge said on Thursday that Mkhwebane had failed to investigate numerous irregularities properly and objectively by not interviewing victims and provincial politicians implicated in the Estina matter, among the best known cases of “state capture” in South Africa.

Estina refers to a government project set up in 2013 to help landless black farmers. The project was eventually found to have been defrauded of about 230 million rand ($15 million) by powerful political and business interests.

“The failures and dereliction of duty of the Public Protector in the Estina matter are manifold. They speak to her failure to execute her duties in terms of the constitution and the Public Protector Act,” Judge Tolmay said.

“Her conduct during the entire investigation constitutes gross negligence. She failed completely to execute her constitutional duties,” said the judge.

Prosecutors in the Estina case have said the public money invested in the dairy project was siphoned off, some of it into accounts linked to the Gupta business family and high-ranking members of the African National Congress.

The Guptas deny any wrongdoing, their lawyer Rudi Krause said earlier this year.

(Reporting by Mfuneko Toyana; editing by James Drummond)

READ: The Battles of South Africa’s Public Protector: Why the Law Must Win