'Public protector's conduct fell far short of what is expected' - ConCourt

The Constitutional Court said on Monday that public protector Busisiwe Mkhwebane's conduct in the Bankorp-Absa bailout matter fell far short of the high standards required of her office.

The majority of the Constitutional Court dismissed Mkhwebane's application to set aside a Pretoria high court judgment last year which ordered that she pay 15% of the costs in that case from her own pocket.

In the majority judgment penned by justices Sisi Khampepe and Leona Theron, the court said the constitution required public officials to be accountable and observe heightened standards in litigation.

“They must not mislead or obfuscate. They must do right and they must do it properly."

"Bad faith", "not being candid", "misrepresenting, under oath"  and "not honest" were some of the phrases used in the judgment when referring to the conduct of the public protector.

They said the personal costs order against a public official was to vindicate the constitution.

They said these orders were required to protect the Constitution because officials who flouted their constitutional obligations must be held to account.

“And when their defiance of their constitutional obligations is egregious, it is they who should pay the costs of the litigation brought against them, and not the taxpayers.

“This court has repeatedly affirmed the principle that a public official who acts in a representative capacity may be ordered to pay costs out of their own pockets in certain circumstances.”

They said there was no merit in the public protector’s contention that the independence of her office and proper performance of her functions demand that she should be exempted from the threat of being ordered to pay personal costs orders.

“On the contrary, personal costs orders constitute an essential, constitutionally infused mechanism to ensure that the public protector acts in good faith and in accordance with the law and the constitution,” they said.

They said the fears that Mkhwebane had about the impact of a personal costs order on the institution of the public protector were unwarranted.

“There can be no fear of danger of a personal-costs award where a public official acts in accordance with the standard of conduct required of them by the law and the constitution.”

The majority also took issue with the failure by Mkhwebane to disclose the meeting she had with the presidency on June 7, before the final report on the Bankorp-Absa meeting was released.

“The public protector has not been candid about the meetings she had with the presidency and the State Security Agency before she finalised the report. The public protector's conduct in the high court warranted a de bonis propriis (personal) costs order against her because she acted in bad faith and in a grossly unreasonable manner.”

They also found that Mkhwebane’s entire model of investigation was flawed.

“She was not honest about her engagement during the investigation.”

They said she failed to engage with the parties directly affected by her remedial action before she published her final report.

“This type of conduct falls far short of the high standards required of her office.”

However, a minority judgment penned by chief justice Mogoeng Mogoeng said considerations of justice demanded that the legal basis for awarding such costs, appreciating their disastrous consequences, must not only be correctly identified, but how they found application in this case must also be properly explained.

Mogoeng said gross negligence and bad faith by Mkhwebane had to be demonstrated, and so should the meeting of the test for imposing personal costs on an attorney and client scale. Mogoeng said this did not happen.

"It is harsh enough to be ordered to pay the costs on an attorney and client scale in a representative capacity and even more so to have to pay normal costs out of one's own pocket as a representative litigant," Mogoeng said in the judgment, in which acting justice Patricia Goliath concurred.