Constitutional Court to rule if Busisiwe Mkhwebane must pay Bankorp costs

In what may become another blow to the credibility of public protector Busisiwe Mkhwebane, the Constitutional Court will decide on Monday whether she must personally pay the costs orders made against her by the high court in its ruling on her investigation into the Reserve Bank’s apartheid-era Bankorp bailout.

The Reserve Bank, Absa, the finance minister and the Treasury instituted a review application in the high court in 2018 to set aside certain paragraphs of Mkhwebane’s remedial action recommendations. The applicants argued that the manner in which the investigation was conducted and the recommended remedial action were flawed.

In a ruling that criticised the “unacceptable way” in which Mkhwebane had conducted her Bankorp investigation and that said she could reasonably be suspected of bias, the Pretoria high court set aside the paragraphs and ordered Mkhwebane, in her personal capacity, to pay 15% of the costs of the Bank on an attorney-and-client scale. She subsequently asked the Constitutional Court to reverse the personal costs order, estimated at R900,000.

That judgment will be relevant to the costs order in the review of another of Mkhwebane’s investigations. Her report into the Vrede dairy farm was reviewed and set aside earlier in 2019. Judgment in terms of costs was reserved pending the outcome of the Constitutional Court ruling.

Mkhwebane is under intense scrutiny following court decisions to set aside some of her reports, and calls are mounting for an inquiry into her fitness to hold office. The ANC’s alliance partner, the SA Communist Party (SACP), wants this process expedited. 

The DA has already requested that an inquiry into the public protector be prioritised, but Mkhwebane has reportedly warned parliament to back off.

The Sunday Times reported at the weekend that Mkhwebane had written to National Assembly speaker Thandi Modise, arguing that Modise had violated the constitution by allowing a probe into Mkhwebane’s fitness to hold office to be referred to parliament’s justice committee. Mkhwebane reportedly argued that parliament has no rules on the procedure to give effect to her removal.

Parliamentary spokesperson Moloto Mothapo said on Sunday that Modise has responded to Mkhwebane and that the matter remains before the committee. “The process of parliament is … on course,” he said.

Lawson Naidoo, executive secretary of the Council for the Advancement of the SA Constitution, said the rationality of Mkhwebane’s appointment and her fitness to hold office should be considered urgently, given the mounting evidence that she was “reckless” in many of her reports.

Despite there being no specific rules for removing Mkhwebane, said Naidoo, there is no reason why parliament could not adopt another process to develop them.

“Mkhwebane cannot dictate to parliament how to do its job,” he said. “There is now a sense of crisis around a public protector that is so constantly being challenged. Parliament is not stepping up to the plate in dealing with these issues. It is dragging its feet.”

In another battle facing Mkhwebane, President Cyril Ramaphosa is set to challenge her finding that he “deliberately misled” parliament over a R500,000 donation to his campaign for the ANC presidency.

Absa also moved at the weekend to dismiss Mkhwebane’s comment on Friday that it had refused to co-operate with her in the investigation into Ramaphosa.

“In the past 12 months, Absa has received two subpoenas from the public protector and has, in accordance with the law, complied with them. These subpoenas did not involve any information relating to the president,” Absa spokesperson Phumza Macanda said.

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