Former minister of water and sanitation Gugile Nkwinti’s appeal against former public protector Busisiwe Mkhwebane’s report has been successful.
In a case where President Cyril Ramaphosa serves as the second respondent, the Pretoria High Court upheld the appeal.
The report found that Nkwinti had abused his powers as the then minister of rural development and land reform to benefit his friend Errol Present in the alleged acquisition and lease of a Bekendvlei farm in 2011.
Nkwinti argued that the public protector’s report did not grant him an opportunity to give his response and denied him an extension of time to respond.
Report published in 2019
He then requested that the public protector not finalise or publish the report; however, Mkhwebane went ahead and published it on May 3, 2019.
Mkhwebane alerted him that it would be made public at a media briefing on May 6, 2019. This decision was interdicted, and the review was heard and dismissed on December 20, 2021.
“It is inexplicable that the PP [public protector] was able to come to the conclusion based on the single statement made almost a decade after the fact that Mr Mahlangu understood the introduction of Mr Present and Mr Boshomane as ‘ministerial instructions and therefore required prioritisation’ as evidence of the breach by Mr Nkwinti of the executive ethics code,” reads a court document in part.
“There is simply no rational connection between the information that was before the PP and the conclusions reached by the hearing, and for this reason, on the second three grounds, the review also succeeds.”
Nkwinti was accused of being responsible for introducing Present to the then deputy director-general, Vusi Mahlangu, understanding that the department had the authority to conclude the lease.
Irregularities in farm acquisitions
According to the report, the two were introduced at a Land Reform Summit on request that Mahlangu take Present and his business partner through the departmental screening of beneficiaries’ process.
“In terms of the policy [proactive land acquisition strategy], the Department of Rural Development and Land Reform would invite persons interested in farming to be placed on a database, and thereafter, once farmland had been acquired, allocations would be made to beneficiaries,” according to a court document.
In this case, Present and his partner were considered beneficiaries even though they were not registered on the database.
The report also revealed that at Present’s wedding, Nkwinti gave a speech and also mentioned that the groom and partner had applied for a farm in Limpopo.
The irregularities in farm acquisitions were raised in February 2014.
Nkwinti then called on the forensic investigating directorate of the department to conduct scoping investigations into the acquisition of all farms.
The reports found that Present wanted a R2-million facilitation fee paid to Nkwinti, but the minister was cleared of any involvement in the irregularities.
R2m payment allegations
The public protector’s report cleared him of the R2-million payment allegations.
An external investigator, Deloitte, was appointed to zoom into matters of the Bekendvlei farm in 2015.
“On May 16, 2016, Deloitte’s draft report was made available to the department. The draft report contained a recommendation that Mr Nkwinti be charged with possible corruption and included a finding that he was guilty of abusing his position as minister to influence the acquisition of the farm Bekendvlei for purposes of allocating it to Mr Present and Mr Boshomane.
“It was also recommended that disciplinary steps be taken against Mr Mahlangu,” reads a court document.
With the appeal upheld, the respondent is expected to pay the appeal costs. The public protector’s report is also reviewed and set aside.
