Public Protector Busisiwe Mkhwebane. Picture: ESA ALEXANDER
Public Protector Busisiwe Mkhwebane. Picture: ESA ALEXANDER

Embattled Public Protector Busisiwe Mkhwebane will be fighting another personal cost order in which she would have to answer to claims that she acted in bad faith in how she dealt with the controversial Vrede dairy farm report.

The Council for the Advancement of the South African Constitution  has asked the High Court in Pretoria to award punitive costs against her in her personal capacity, as they believed there was substantial and compelling evidence of bad faith in her conduct.

Mkhwebane has already been ordered to pay a part of the legal costs incurred in another review application of the Absa/Ciex report in the same court earlier this year. She was appealing the costs order directly to the Constitutional Court, her spokesman Oupa Segalwe said, as she believed the decision impacted directly, among others, on her constitutional powers to be independent

Segalwe said she would be opposing the personal costs order in both the review applications by Casac and the DA, and that she would be filing an affidavit to that effect. She had earlier filed a notice to abide by the ruling of the court in Casac’s application, but Segalwe said she was on record that personal costs orders instilled fear in her, and interfered with the performance of her work.

Casac had revealed in a supplementary affidavit filed last week that the record of the decision made by Mkhwebane indicated that there was provisional report by former public protector Thuli Madonsela, and that it appeared as if Mkhwebane altered that report in material ways to exonerate former Free State Premier Ace Magashule, former MEC for Agriculture, Mosebenzi Zwane and the former head of the Department of Agriculture Peter Thabethe.

Mkhwebane said on Monday that any suggestion that she shielded politicians was "devoid of the truth and is malicious."

Casac also said she seemed to have misled parliament as she did not indicate to the portfolio committee on justice and correctional services that she altered the provisional report by removing the very remedial action that specifically targeted those politicians she would now investigate following an undertaking to the committee.

Meanwhile the DA’s justice spokeswoman Glynnis Breytenbach said she would be writing to the speaker of parliament on Wednesday to request that the issue be referred back to the parliamentary portfolio committee. The DA has argued that she is unfit to hold office.

Chairman of the committee Dr Mathole Motshekga said it was unfortunate that "we found ourselves in a situation like this, as we have backlogs of legislation we want to deal with."

He said the committee would want to deal with issues that take the country forward, and not end up being a commission of enquiry, but that members of parliament can’t be stopped from raising legitimate issues.

Motshekga, asked if he was worried about the allegations about her, said everybody should be worried about it, given the importance of chapter nine institutions.