Public protector Busisiwe Mkhwebane is staring down the barrel of a gun after the Constitutional Court said she should be held personally liable for almost R1m of fees incurred by the SA Reserve Bank in the review of her findings in the apartheid-era loan to bail out Bankorp.
In a scathing ruling, the country’s highest court found that she had told a "number of falsehoods" in the course of the litigation.
The latest legal setback will give more ammunition to those who have called for Mkhwebane, who is in the midst of a battle with President Cyril Ramaphosa over her findings that he violated the constitution by misleading parliament over a donation from scandal-hit firm Bosasa, to be removed from office.
A public protector can only be ousted on grounds of misconduct, incapacity or incompetence.
The Constitutional Court said it would not interfere with the lower court’s order that she had to personally pay 15% of the legal costs for the review of the Bankorp report, or with the finding that she acted in bad faith. In addition to the proposal to change the central bank’s mandate, she ordered that Absa pay the state R1bn because it had benefited from state aid when buying Bankorp.
Chief Justice Mogoeng Mogoeng issued a dissenting judgment in which he said that the high court’s costs order should have been set aside and that the implication of the majority judgment would "predictably end her career" and "drown her in debt".
‘Lied to the court’
Lawson Naidoo, executive secretary of the Council for the Advancement of the SA Constitution, said Mkhwebane’s position is untenable after the judgment, as "she has basically been found to have lied to the court". Her conduct meant that the Legal Practice Council would have to consider whether she is still fit and proper to be an advocate, he said.
Mkhwebane has been under fire since the Bankorp report was first set aside by the high court in Pretoria in 2018. Her detractors were further emboldened in 2019 after the high court set aside another report, on the Gupta-linked Vrede dairy farm scandal. The court, however, reserved judgment on the costs order pending the outcome of the Constitutional Court judgment.
Mkhwebane’s critics have accused her of bias and involving her office in ANC factional battles. While she did not probe the involvement of former Free State agriculture MEC Mosebenzi Zwane and former premier Ace Magashule in the Vrede farm case, she has been steadfast in pursuing cases against Ramaphosa and public enterprises minister Pravin Gordhan, a key ally of the president and one of the most vocal critics of Jacob Zuma within the ANC during the latter stage of
his presidency.
The DA, whose complaint set in motion the probe into Ramaphosa, has requested parliament to start removal proceedings against her.
The Constitutional Court was critical over contradictions around her version of what was discussed at a meeting with
the presidency ahead of the release of the final report on the Bankorp saga, as well as a secretive meeting with the State Security Agency.
Mkhwebane, who cannot appeal the judgment, said on her office’s official Twitter account that the judgment set a precedent for all other public protectors and that it was not clear how the office would be able to do its work going forward without fear, favour or prejudice.
However, the majority judgment penned by justices
Sisi Khampepe and Leona Theron said that those concerns were "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 of them."
In his minority judgment Mogoeng said this was the second time in SA’s history that a senior constitutional office-bearer had been ordered to pay personal costs while litigating on behalf of the state. He said that it is "only in relation to conduct that is clearly and extremely scandalous and objectionable that these exceptional costs are awarded", and that such conduct had not been shown in this case.
The DA’s chief whip, John Steenhuisen, said his party would write to the speaker of parliament to request the complaint regarding the public protector’s fitness to hold office be expedited. It has been referred to the portfolio committee on justice & correctional services.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.