8 legal challenges that overturned Mkhwebane’s reports and findings

Public Protector Busisiwe Mkhwebane has had numerous bruising court defeats that overturned several of her reports and recommendations, which has led to Parliament starting a process to investigate whether she is fit to hold office.

FILE: Advocate Busisiwe Mkhwebane delivering her findings against President Cyril Ramaphosa. Picture: EWN

JOHANNESBURG – Advocate Busisiwe Mkhwebane has had a challenging tenure as South Africa’s Public Protector since her appointment in October 2016, when she took over from her predecessor, Advocate Thuli Madonsela.

Mkhwebane has had numerous bruising court defeats that overturned several of her reports and recommendations, which has led to Parliament starting a process to investigate whether she is fit to hold office.

And most recently, the National Prosecuting Authority (NPA) confirmed this month that it was pursuing a criminal case against her on three counts of perjury related to her controversial report on the apartheid-era loan by the South African Reserve Bank (Sarb) to Bankorp.

This would be the first time the head of the Chapter 9 institution has ever faced criminal prosecution in the Public Protector’s history.

These are the eight court cases that successfully reviewed Mkhwebane’s reports:

1. ABSA-BANKORP MATTER

READ: Mkhwebane loses appeal on costs order in Absa-Bankorp matter

In July 2019, the Constitutional Court upheld a Pretoria High Court ruling that found that Mkhwebane was dishonest in her investigation into the apartheid-era loan by the South African Reserve Bank (Sarb) to Absa in the 1980s.

The Public Protector lost an application for leave to appeal an order by the High Court in February 2018 that she personally cover 15% of the Sarb’s legal costs in the case.

ALSO READ: Sarb-Absa report: 5 findings the ConCourt made against Mkhwebane

A full bench of the High Court set aside her controversial report and its remedial action, which ordered the Special Investigating Unit (SIU) to recover more than R1 billion from Absa for the apartheid-era bailout.

2. ESTINA DAIRY FARM

READ: Court orders Mkhwebane to pay some costs of Estina report case

In August 2019, the High Court in Pretoria reviewed and set aside Mkhwebane’s report and remedial action, finding that she had failed in her duties to properly investigate the Gupta-linked Estina dairy project in Vrede.

In June 2020, the Supreme Court of Appeal (SCA) also dismissed with costs the public protector’s leave to appeal application in the case.

In August 2020, the Constitutional Court upheld the SCA ruling and dismissed Mkhwebane’s appeal application, finding that it had no reasonable prospect of success.

3. SARS ‘ROGUE’ UNIT

READ: Mkhwebane’s report into Gordhan, Sars 'rogue' unit set aside

In December 2020, the public protector’s report into the so-called Sars “rogue” unit was set aside by the Pretoria High Court.

The court issued a punitive costs order against Mkhwebane and described her conduct in the matter as “egregious”. The Economic Freedom Fighters (EFF) and Mkhwebane took the court decision to the Constitutional Court, which upheld the ruling.

The High Court also found that the Public Protector relied on discredited information while compiling her report, showing bias towards Public Enterprises Minister Pravin Gordhan and former Sars deputy commissioner Ivan Pillay.

4. CELE VS MKHWEBANE

READ: Another legal blow for Mkhwebane as court sides with Bheki Cele

In June 2020, the Pretoria High Court vindicated Police Minister Bheki Cele after Mkhwebane’s 2018 report found gross negligence, improper conduct, and maladministration in a 2018 case.

In August 2018, the Public Protector found Cele had failed to provide witness protection for two whistle-blowers from KwaZulu-Natal, leaving them open to assassination attempts.

Cele took the matter under judicial review, insisting the National Prosecuting Authority was responsible for providing protection to witnesses. Mkhwebane even suggested that President Cyril Ramaphosa should reprimand Cele for what she called “a lapse in judgement”.

The minister said he was vindicated by the court judgment.

5. CR17 CAMPAIGN FUNDS

READ: Cyril Ramaphosa not obliged to disclose CR17 funding, court rules

In March 2020, a full bench of the Pretoria High Court reviewed and set aside the public protector’s Bosasa report.

The July 2019 Public Protector report found that Ramaphosa was obliged to disclose the funds donated to his CR17 campaign in his bid to become ANC president in 2017.

But the High Court disagreed with her findings and set aside all other findings and remedial actions as contained in the report.

In December 2020, the Constitutional Court reserved judgment in the public protector’s appeal of the High Court ruling.

6. FSCA REPORT

READ: More legal woes for Mkhwebane as FSCA files court papers to review her report

In October 2020, the High Court in Pretoria set aside the public protector’s report released in March 2019, which found the Financial Sector Conduct Authority (FSCA) and its former board executive, Dube Tshidi, guilty of impropriety and maladministration.

The FSCA, formerly known as the Financial Services Board, said the report was conducted in bad faith after EFF leader Julius Malema laid a complaint against Tshidi, who he alleged nominated and recommended the appointment of Mostert as a curator for pension funds.

Malema alleged that Mostert was paid R188 million in curator fees and an additional R48 million in legal fees.

The FSCA argued that the manner in which Mkhwebane conducted her investigation rendered the findings reviewable for perceived bias and bad faith.

7. TAXPAYER INFORMATION

READ: Mkhwebane: door remains open to appeal High Court ruling on taxpayers’ info

In December 2020, the Constitutional Court dismissed Mkhwebane’s appeal bid related to her ability to subpoena taxpayer information. The appeal related to a case in which her office tried to attain former President Jacob Zuma’s tax records.

However, the ConCourt granted Mkhwebane leave to appeal a costs order imposed on her in the High Court in Pretoria.

8. PILLAY’S EARLY RETIREMENT

READ: Court sets aside PP report which found fault in Pillay’s Sars retirement payout

In December 2020, the High Court in Pretoria set aside the public protector’s report that found fault with former Sars deputy commissioner Ivan Pillay’s early retirement payout back in 2010.

Her 2019 report was challenged by Gordhan – who was then Sars commissioner - after it found he was wrong to approve Pillay’s pension with benefits.

The minister pushed back against the findings and asked the courts to set the report aside with costs. However, the cost order was dismissed.

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