Public Protector welcomes court decision on the Nkwinti report

Public Protector welcomes court decision on the Nkwinti report Public Protector Adv. Busisiwe Mkhwebane welcomes the decision of the High Court in Pretoria this week in terms of which an application by the former Minister of Rural Development and Land Reform, Mr. Gugile Nkwinti, to have the findings that he violated the Executive Ethics Code reviewed and set aside was dismissed with costs.

In a May 2019 report, Adv. Mkhwebane found that Mr. Nkwinti as Minister abused his position of authority and unduly influenced the acquisition of Bekendvlei Farm in Limpopo for the purposes of allocating it to Mr. Velile Present, with whom he was closely acquainted, and another person, Mr. Moses Boshomane. In so doing, Mr. Nkwinti exposed himself to a situation involving the risk of a conflict between his official responsibilities as a Minister and his personal relationship with Mr. Present in contravention of the Executive Ethics Code, Adv. Mkhwebane found.

The investigation was prompted by two complaints, one from Mr. Thomas Walters, a Democratic Alliance Member of Parliament, and the other from Mr. Nkwinti himself. Both requests for investigation were based on a Sunday Times newspaper article in which it was reported that Mr. Nkwinti had “helped friends take over R97m farm”. Adv. Mkhwebane directed President Cyril Ramaphosa at the time to take appropriate action against Mr. Nkwinti for violating the Executive Ethics Code and to submit to the National Assembly a copy of the report with his comments on the content as well as any action he had taken or intended to take against Mr. Nkwinti. President Ramaphosa had to do so within 14 days of receiving the report.

However, Mr. Nkwinti secured an interim interdict from the High Court, stopping the Public Protector from releasing the report and preventing President Ramaphosa from acting on it. Mr. Nkwinti ceased to be a Member of the Executive in 2019.

The crux of his review application was that the Public Protector had failed to exercise her discretion judicially, failed to engage and grant him an opportunity to respond to potential findings, was bias and conflicted and that her findings were irrational. But, in a judgment handed down electronically on Monday, December 13, 2021, Acting Judge T. Moosa found no merit to all the grounds above. In addition, the court awarded costs against Mr. Nkwinti, ruling that he litigated on a “misguided perceived advantage with not an iota of evidence in substantiation and having litigated at the expense of the public pocket in [Acting Judge Moosa’s] view warrants a punitive costs order”.