South Africa


Mkhwebane loses SARB appeal: ConCourt orders her to pay 15% out of her own pocket

Public Protector, Busisiwe Mkhwebane answers tough questions related to the Vrede dairy project investigation by Parliament’s Portfolio Committee on Justice and Correctional Services in Parliament, 6 March 2018. Photo by Leila Dougan

Public Protector Busisiwe Mkhwebane lied to court, was biased and acted in bad faith during her Bankorp/Absa investigation and does not fully understand her constitutional duty to be impartial.

The Public Protector must pay 15% of the South African Reserve Bank’s legal costs out of her own pocket, according to a stringent majority judgment written by Constitutional Court Justices Sisi Khampepe and Leona Theron, delivered on Monday morning.

The court, sitting in Braamfontein, Johannesburg, further dismissed the SARB’s cross-appeal asking for a declaratory order that the Public Protector abused her office in the Bankorp/Absa investigation.

Mkhwebane attended the reading of the judgment, and told journalists after proceedings, “I never told any falsehoods”. She knows “quite well” that she cannot appeal the apex court’s judgment, and didn’t want to be pushed on the fact that she was found to have acted in bad faith.

This is a far-reaching judgment that will impact other Public Protectors,” she said.

The Constitutional Court upheld the High Court’s judgment, delivered by a full Bench of three judges in 2018, which stated that Mkhwebane’s conduct in the Bankorp/Absa investigation has been found wanting. The High Court ordered that Mkhwebane pay 15% of SARB’s legal fee from her own pocket, and that the cash-strapped Public Protector’s office pay the rest of the costs.

See earlier report ahead of the ruling here:  It’s judgment day for the Public Protector

The Constitutional Court’s judgment finds that “regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, such as misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the order therefore stands.”

The Constitutional Court’s judgment will have a far-reaching effect on the beleaguered Mkhwebane, who is facing two review applications from Minister Pravin Gordhan and another from President Cyril Ramaphosa. Gordhan’s application is loosely based on the same grounds, arguing that Mkhwebane was biased and unfair.

Chief Justice Mogoeng Mogoeng wrote the minority judgment, stating that the High Court’s judgment should have been set aside. Minority judgments have no material effect on proceedings. DM

Daily Maverick will publish an article unpacking the full judgment during the day.


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