The Public Protector’s office has noted that Busisiwe Mkhwebane is taking her fight against the Estina Diary Farm judgment to the Supreme Court of Appeals (SCA).

Mkhwebane loses judgment appeal, with costs

Four months after the Gauteng High Court handed down a scathing judgment on Mkhwebane’s report on the Vrede Dairy Project, she was back in court to hear the outcome of her appeal.

Mkhwebane was accused by the Democratic Alliance (DA) and the Council for the Advancement of the South African Constitution (Casac) of improperly handling the Estina probe after it was handed over to her by her predecessor, Thuli Madonsela.

In August, the court had ruled in favour of the DA, in declaring the report “unlawful, unconstitutional and invalid”. Her report failed to find any wrongdoing by those involved in the scandal.

This is despite the fact that there were heaps of evidence implicating Secretary General, Ace Magashule, and former minister, Mosebenzi Zwane.

The initial judgment described Mkhwebane’s report as a disgrace to the people of South Africa.

“In this instance the dereliction of her duty impacted on the rights of the poor and vulnerable in society, the very people, for whom her office was essentially created.”

Gauteng High Court, August 2019

On Friday, Judge Ronel Tolmay dismissed Mkhwebane’s application for leave to appeal the scathing judgment, with costs. She explained that Mkhwebane failed to present a solid case on the merits of the judgment.

A breakdown of the costs

Tolmay indicated that Mkhwebane, in her capacity as the Public Protector, would have to pay:

  • 85% of the DA’s costs on an attorney scale; and
  • 85% of the costs of Casac.

Moreover, in her personal capacity, she got the following legal bill:

  • pay 7.5% of the DA’s costs; and
  • 7.5% of Casac’s

Although Tolmay revealed that her judgment — and particularly on the issue of costs — was guided by past judgments from the SCA as well as the Constitutional Court, Mkhwebane’s office revealed that the she would be taking the matter a level higher for further review.


Presh JM Reporter

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