Public protector Busisiwe Mkhwebane must pay up in Reserve Bank/Absa matter

The Constitutional Court has dismissed public protector Busisiwe Mkhwebane's appeal against a high court judgment which ordered that she personally pay 15% of the costs from her own pocket in a matter involving the Reserve Bank.

This means Mkhwebane is personally liable for an estimated R900,000.

The court dismissed the Reserve Bank application that she be found to have abused her office.

The majority of the court said there was no sound basis for it to interfere with the high court's discretion to grant punitive cost orders. The court held that punitive cost orders were granted when public officials fell egregiously short of what was required of them as public officials. The court said such cost orders were not ordered against public officials who acted appropriately.

However, a minority judgment written by chief justice Mogoeng Mogoeng said he would have granted Mkhwebane's application for leave to appeal.

Mkhwebane, who attended the ruling, commented via Twitter to say she would study the judgment.

"Although it is the majority judgment which matters, we take solace in the fact that there were dissenting views among the judges. This tells us that there were some among the esteemed Constitutional Court judges who saw things from our perspective. We will study the judgment."

The judgment Constitutional Court ruling follows Mkhwebane’s appeal against a 2018 high court judgment that set aside the remedial action contained in her 2017 Absa-Bankorp report‚ which found that Absa should repay R1.1bn to the Reserve Bank.

The public protector’s remedial actions also directed parliament to amend the constitution in order to change the mandate of the Bank.

In the 2018 judgment‚ Mkhwebane was also ordered personally to pay 15% of the costs of the application by the Bank‚ on an attorney and client scale‚ including the costs of three counsel.

The high court held that there was a reasonable apprehension that the public protector was biased in her investigation and that she did not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice.

An application for leave to appeal was refused by the high court. The application suffered a similar fate at the Supreme Court of Appeal.

In her application before the Constitutional Court heard in November 2018, Mkhwebane said the procedure followed in the high court, seeking a costs order against her, was flawed and thus should not have been granted. 

She said the public protector was similar to a judge and was similarly indemnified from costs in her personal capacity for action taken in her official role.

The Reserve Bank opposed Mkhwebane’s application.

Mkhwebane has meanwhile threatened to go to court should parliament try to remove her from office.

The Sunday Times reported at the weekend that she had written to National Assembly speaker Thandi Modise, effectively telling her to stop a probe into her fitness to hold office.