In quotes: 10 times the ConCourt slammed Mkhwebane

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.”