Court fight: Busisiwe Mkhwebane is going to court again over the legal bill she has been ordered to pay. Picture: SIMPHIWE NKWALI/SUNDAY TIMES
Court fight: Busisiwe Mkhwebane is going to court again over the legal bill she has been ordered to pay. Picture: SIMPHIWE NKWALI/SUNDAY TIMES

Public Protector Busisiwe Mkhwebane is not giving up her fight to overturn the estimated R900,000 legal bill she was ordered to pay after her disastrous court battle with the Reserve Bank.

She has now turned to both the Supreme Court of Appeal and the Constitutional Court to fight that costs order, which was the first of its kind to be made against a public protector.

The High Court in Pretoria ordered that Mkhwebane personally pay 15% of the Reserve Bank’s legal costs in its successful challenge to her report on the apartheid-era bail-out given to Bankorp. Bankorp was later taken over by Absa.

Mkhwebane had been forced to admit she had got it wrong when she ordered that the Reserve Bank’s constitutional mandate must be changed. But she continued to defend the overall validity of her report.

In that report, Mkhwebane ordered the Special Investigating Unit (SIU) to reopen an earlier investigation by the unit into the apartheid-era lifeboat granted to Bankorp "in order to recover misappropriated public funds unlawfully given to Absa Bank in the amount of R1.125bn".

The high court later overturned the report in its entirety.

It found that Mkhwebane did not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice.

Mkhwebane sought leave to appeal against that ruling, but the high court found she had no reasonable prospect of success on appeal and dismissed her application. But Mkhwebane is not giving up.

"The public protector is appealing. She has petitioned the Supreme Court of Appeal and has applied for direct access to the Constitutional Court," her spokesman Oupa Segalwe told Business Day.

He said that the costs order against Mkhwebane had been "suspended until the outcome of the appeal process".

Segalwe previously stated that the personal costs order against Mkhwebane had "instilled fear in the public protector when it comes to defending her reports in court".

Mkhwebane’s appeal bid was based on her unhappiness about the high court’s finding that she had "failed to disclose certain meetings in her report", leading to "an alleged reasonable apprehension of bias", he said.

In the high court ruling on the Reserve Bank case, three judges expressed disquiet over Mkhwebane’s meetings with the Presidency and the State Security Agency, some of which she did not initially disclose. It also emerged that a note recorded during Mkhwebane’s meeting with the State Security Agency stated – in reference to the Reserve Bank – "how are they vulnerable?"

The high court expressed concern that Mkhwebane had met the State Security Agency and the Presidency, less than two weeks before she released her far-reaching Bankorp report, without disclosing this to the Reserve Bank or Absa.

"We ... conclude that it has been proven that the public protector is reasonably suspected of bias," the court ruled.

Mkhwebane is seeking to overturn that finding, which was a key factor in the high court ruling that she should be partly liable for the Reserve Bank’s legal costs.

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