Busisiwe Mkhwebane. Picture: AFP
Busisiwe Mkhwebane. Picture: AFP

Public protector Busisiwe Mkhwebane contends that the personal costs order granted against her over her invalid investigation into the alleged Estina Dairy Project scam is “not just and equitable”, and she should be given the right to appeal.

“There is no evidence that the public protector did not act in good faith,” Mkhwebane’s counsel, Francois Botes, states in court papers filed at the Pretoria high court. He argued on Wednesday morning that Mkhwebane should be given leave to appeal the damning judgment given against her by Judge Ronel Tolmay.

Tolmay will deliver her ruling on whether Mkhwebane should be given the right to appeal her damning judgment on the Estina report on Friday at 11.30am.

Tolmay not only found Mkhwebane’s Estina investigation to be unconstitutional and invalid, but also ruled that she should personally pay 7.5% of the legal costs spent on challenging that report. Botes contends that this personal costs order was unjustified.

“There is, furthermore, no evidence that the public protector was grossly negligent or acted improperly in flagrant disregard of constitutional norms in her investigation. The public protector’s conduct in these proceedings and in the investigation does not warrant the cost order against her,” he said.

On Wednesday morning, Botes further argued that the scathing judgment delivered against her by Tolmay effectively robbed her of the ability to decide whether to pursue investigations.

“The result of this is that the public protector is not vested with discretion in determining which complaints to investigate and places a duty on the public protector to investigate every complaint, even when cogent reasons may exist for not acting in the time demanded,” he argued.

Tolmay found that Mkhwebane did not have the wide discretion she claimed to have in deciding whether to pursue investigations. She further dismissed Mkhwebane’s argument that she was limited in her ability to probe the Estina project by resource constraints.

Mkhwebane’s Estina investigation — in which she did not probe claims that ANC secretary-general Ace Magashule and former mineral resources minister Mosebenzi Zwane were implicated in the allegedly fraudulent and Gupta-linked scheme — was criticised as a whitewash.

Botes contends that it is “clearly in the interests of justice” that another court determine what discretion Mkhwebane has in deciding whether to investigate.

Tolmay has, however, responded to that argument by saying she would be “surprised” if anyone argued that her ruling limited the discretion of the public protector.

The hearing continues.