Mkhwebane wants ConCourt to set aside ruling that she was biased

24 July 2018 - 12:47 By Karyn Maughan
Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Image: Esa Alexander

The Constitutional Court has given Public Protector Busisiwe Mkhwebane the right to argue against an estimated R900,000 legal costs bill she was ordered to pay personally‚ after her disastrous court battle with the Reserve Bank.

The Constitutional Court’s decision to grant Mkhwebane direct access to argue her appeal comes after the High Court dismissed her costs order challenge – with costs.

Mkhwebane wants South Africa’s highest court to rule that the costs order given by three Pretoria High Court judges “impacts adversely and directly on the exercise by the Public Protector‚ a Chapter Nine institution‚ of her constitutional power‚ obligations and functions without fear‚ favour or prejudice”.

Mkhwebane is also arguing that the Constitutional Court must “set aside” the High Court’s findings “that there is a reasonable apprehension that I was biased” and “that I do not fully understand my constitutional duty to be impartial and to perform my functions without fear‚ favour or prejudice”.

It was on the basis of these findings that the High Court ordered that Mkhwebane personally pay 15% of the Reserve Bank’s legal costs in its successful challenge to her report on the apartheid-era bailout given to Bankorp. Bankorp was later taken over by Absa.

Mkhwebane had been forced to admit that she’d got it wrong when she ordered that the Reserve Bank’s constitutional mandate must be changed‚ as part of that report’s remedial action. But she continued to defend the overall validity of her report.

In that report‚ Mkhwebane ordered the Special Investigating Unit (SIU) to reopen its earlier investigation into the apartheid-era lifeboat granted to Bankorp "in order to recover misappropriated public funds unlawfully given to Absa Bank in the amount of R1.125bn".

The North Gauteng High Court later overturned the report in its entirety. It found that Mkhwebane did not fully understand her constitutional duty to be impartial and to perform her functions without fear‚ favour or prejudice.

“It is necessary to show our displeasure with the unacceptable way in which she (Mkhwebane) conducted her investigation as well as her persistence to oppose all three applications (bought by the SARB) to the end‚” the court stated.

The court had expressed disquiet over Mkhwebane’s meetings with the presidency and the State Security Agency (SSA) over her Bankorp investigation‚ certain parts of which she did not initially disclose.

It also emerged in court proceedings that a note recorded during Mkhwebane’s meeting with the SSA stated – in reference to the Reserve Bank – “how are they vulnerable?”

The High Court expressed concern that Mkhwebane had met with the SSA and the presidency less than two weeks before she released her far-reaching Bankorp report‚ without disclosing this to the Reserve Bank or Absa.

“Having regard to all these considerations‚ we are of the view that a reasonable‚ objective and informed person‚ taking into account all these facts‚ would reasonably have an apprehension that the Public Protector would not have bought an impartial mind to bear on the issues before her‚” the court ruled.

“We therefore conclude that it has been proven that the Public Protector is reasonably suspected of bias”.

Mkhwebane sought leave to appeal that ruling‚ but the High Court found she had no reasonable prospect of success on appeal and dismissed her application.

The court’s findings provided ammunition to Mkhwebane’s critics‚ and may be used to support the case for her removal by Parliament‚ which is why it is crucial for her that she overturn them.

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