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The Constitutional Court, in a majority judgment on Monday, upheld the North Gauteng’s High Court order in February 2018 for Public Protector Busiswe Mkhwebane to be personally liable for 15% of the legal fees in the Absa/Bankorp case.
This could amount to hundreds of thousands of rands, and sets a precedent for the Public Protector to face similar personal costs orders in other reports that face judicial review.
At the centre of this apex court decision was Mkhwebane’s 2017 report into the Absa/Ciex matter which, she inherited from her predecessor. Her remedial action included that R1.2bn should be repaid by Absa Bank to the SA Reserve Bank for 1990’s bailout to subsidiary Bankorp, and that the widening of the central bank’s focus should include economic growth.
Both findings were set aside by the North Gauteng High Court, which in February 2018 granted the Reserve Bank’s application that Mkhwebane be held personally liable for 15% of the legal costs. Her office would be responsible for 85% of the court bid.
The majority judgement by Justices Sisi Khampepe and Leona Theron, together with six other justices, was scathing of the Public Protector.
A minority judgement penned by Chief Justice Mogoeng Mogoeng, which one other justice concurring, found that Mkhwebane should not be held personally responsible for the fees.
Here are 10 of the damning quotes against Mkhwebane by the Constitutional Court.
Bad faith conduct
"Personal costs orders against public officials, like the Public Protector, whose bad faith conduct falls short of what is required of them, constitute an essential, constitutionally-infused mechanism to ensure that they act in good faith and in accordance with the law and the Constitution."
A number of falsehoods
"The Public Protector had put forward a number of falsehoods in the course of litigation, including misrepresenting under oath before the High Court that the economic analysis which underpinned the final report was based on expert economic advice, which it was not."
Harm to SA economy
"The release of the final [Absa/Ciex] report caused severe harm to the South African economy. This included a significant depreciation in the Rand and a sell off by non-resident investors of R1.3bn worth of South African government bonds."
Falling egregiously short
"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 of them."
No mention of meetings with presidency
"It is disturbing that there is no explanation from the Public Protector as to why none of her meetings with the Presidency were disclosed in the final [Absa/Ciex] report. This is especially so as the final report contained a section which listed the meetings that she held during her investigation… The record contained handwritten notes which indicate that the Public Protector met with the Presidency’s legal advisors on 7 June 2017, 12 days prior to the publication of the final report."
Contradictory explanations
"In this Court, the Public Protector’s explanations are contradictory. On the one hand, the Public Protector says that the meetings with the Presidency had 'nothing to do with the substance of the content of [her] Report' and that they did not discuss the remedial action recommended in the final report before its publication. On the other hand, she confirms that the handwritten notes of the meeting of 7 June 2017 set out "what was discussed at the meeting."
Right to know
"The Reserve Bank, this Court and the public are entitled to know why the Public Protector discussed the new remedial action to amend the Constitution and the 1998 Special Investigating Unit Proclamation with the Presidency when she discussed it with no other affected party."
Entire investigation flawed
"The Public Protector’s entire model of investigation was flawed. She was not honest about her engagement during the investigation. In addition, she failed to engage with the parties directly affected by her new remedial action before she published her final report. This type of conduct falls far short of the high standards required of her office."
Reprehensible behaviour
"The punitive costs mechanism exists to counteract reprehensible behaviour on the part of a litigant."
Vindicates Constitution
"The imposition of a personal costs order on a public official, like the Public Protector, whose bad faith or grossly negligent conduct falls short of what is required, vindicates the Constitution."
