Busisiwe Mkhwebane. Picture: SUPPLIED
Busisiwe Mkhwebane. Picture: SUPPLIED

Public protector Busisiwe Mkhwebane will have to pay up personally, after the Constitutional Court agreed with the high court that she acted in bad faith in her investigation into the Reserve Bank’s apartheid-era Bankorp bailout.

In a scathing majority judgment penned by justices Sisi Khampepe and Leona Theron, the Constitutional Court said it saw no reason to interfere with the high court’s personal costs order. 

“The fears that the public protector has about the impact of a personal costs order on the institution of the public protector, are unwarranted. Personal costs orders are not granted against public officials who conduct themselves appropriately. They are granted when public officials fall egregiously short of what is required by them.

“There can be no fear or danger of a personal costs award where the public official acts in accordance with the standard of conduct required of them by the law and the constitution,” the Constitutional Court held.

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 high court in Pretoria 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. 

She argued that the high court misdirected itself in its reasoning for granting the personal costs order against her.

The Bank opposed her application and sought conditional leave to cross-appeal part of the high court judgment that dismissed its application for a declaration that the public protector abused her office during the Bankorp investigation. This appeal was dismissed on Monday.

DA leader Mmusi Maimane visited Bonteheuwel, Cape Town, on Monday July 22 2019. He was in the area to speak to the new neighbourhood safety team, recently deployed to patrol the area. Maimane weighed in on policing in the Western Cape, as well as the recent findings against public protector Busisiwe Mkhwebane by the Constitutional Court.

One of the key issues raised in the litigation was that Mkhwebane had met the State Security Agency (SSA) and the presidency in the course of compiling her final report. In the meeting with the SSA, according to handwritten notes, she discussed the vulnerability of the Reserve Bank.

The Constitutional Court said her explanation of the meeting with the SSA was not only “woefully late but also unintelligible”.

The court held that her explanation made no sense, and that neither the high court, nor the Constitutional Court, was left with clarity on why the Bank's vulnerability was discussed with the SSA during her investigation.

The majority ruling held that it was “disturbing” that there was no explanation given as to why none of her meetings with the presidency was disclosed in her final report.

These meetings were only discovered after the public protector produced the record of evidence used in the investigation, under rule 53 of the uniform rules of the court.

President Cyril Ramaphosa held a press conference at the Union Buildings in Pretoria on July 21 2019 to reply to public protector Busisiwe Mkhwebane's report that found he violated the ethics code.

The Constitutional Court held that the record she produced was “thrown together with no discernable order or index, and excluded important documents”, and that she was wrong to claim she provided the entire record.

The court said she omitted important documents, some of which were placed before the high court in her answering affidavit, while some were only provided when the matter came to the Constitutional Court. 

“The public protector's failure to include these documents in the record, or to account for this failure, stands in stark contrast to her heightened obligation as a public official to assist the reviewing court,” the Constitutional Court held.

A minority judgment by chief justice Mogoeng Mogoeng found that the high court's ruling had to be set aside. 

Mogoeng said it should “only be in relation to conduct that is clearly and extremely scandalous and objectionable that these exceptional costs are awarded”, and that such conduct was not shown in this case. He said no attempt was made to demonstrate how the stringent legal requirements for awarding personal costs on a punitive scale were met.

The majority Constitutional Court 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 in that case 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.

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

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