The Gauteng High Court, Pretoria, has declared Public Protector Busisiwe Mkhwebane’s report on the Vrede dairy farm project unlawful, unconstitutional and invalid.
Judge Ronel Tolmay, in setting the report aside, declared that in investigating and reporting on the Vrede Dairy Project for purposes of her report dated February 8, 2018, the public protector failed in her duties under the Public Protection Act and the Constitution.
The judgment delivered on Monday follows an application by the Democratic Alliance and the Council for the Advancement of the South African Constitution to have the report overturned.
It was claimed that more than R220-m was poured into the project, while only R2-m was spent on the actual farm.
The application before the court related to the investigation and reporting by the public protector on the Free State’s department of Agriculture Vrede Integrated Dairy Project.
The report was the culmination of nearly four years of investigation by the incumbent public protector and her predecessor, Adv Thuli Madonsela, into widespread allegations of corruption and maladministration regarding the project.
The Free State’s Department of Agriculture, led by Mosebenzi Zwane and the ANC’s secretary-general, Ace Magashule allegedly went into partnership with Estina, the Gupta-owned company in running the farm project.
One of the complaints leveled against the report is that it failed to probe Magashule on the project.
Judge Tolmay found that the fact that the public protector failed to properly investigate the complains, was irrational. “It was also not rationally related to the information before her, which provided at least prima facie evidence of corrupt activity. Relevant consideration were ignored which point to irrationality,” the judge said.
Judge Tolmay further said: “The public protector’s belief that she was not empowered to take remedial action referring the matter to another organ of state for further investigation constituted a profound mistake of law.”
The judge did not make an order as to who had to pay the legal costs of this application. She postponed this issue indefinitely.