SCA dismisses Mkhwebane's bid to challenge Estina report court finding

The Supreme Court of Appeal has dismissed, with costs, an application for leave to appeal by Public Protector Busisiwe Mkhwebane in the controversial Estina dairy case.

The public protector had sought to challenge a Pretoria high court ruling which set aside her report on the alleged Estina dairy project scam. Another judgment in the same matter also ordered her to pay costs in her personal capacity.

In her judgment in May last year, in applications brought by the DA and the Council for the Advancement of the South African Constitution (Casac), judge Ronel Tolmay declared unlawful, unconstitutional and invalid and set aside the public protector report No 31 of 2017/18.

In a later judgment in August last year, Tolmay ordered the public protector, in her personal capacity, to pay 7.5% of the costs of the DA on an attorney and clients scale, which included the costs of two counsel.

The same personal costs order was also made in respect of the application by Casac.

In December last year, Tolmay dismissed Mkhwebane's application for leave to appeal her judgment. This prompted Mkhwebane to petition the SCA to appeal against Tolmay's judgment.

In an order dated June 26, the SCA ordered that the application for leave to appeal is dismissed with costs on the grounds that there is no reasonable prospect of success in an appeal and there is no other compelling reason an appeal should be heard.

The public protector's spokesperson Oupa Segalwe said he had not officially received a copy of the order — and that her office's attorneys were “still trying to establish what happened here”.

“Her preliminary comment is that it is strange that the SCA would issue a judgment like that without informing her legal team that the matter was to be considered on the basis of the papers filed rather than a hearing,” he said.

Segalwe said the public protector was awaiting the date of a hearing to be announced.