ConCourt sets aside personal costs order against Busisiwe Mkhwebane

There was no factual basis for the high court in Pretoria last year to grant a personal costs order against public protector Busisiwe Mkhwebane in her legal battle with public enterprises minister Pravin Gordhan.

The Constitutional Court said this on Friday as it set aside a punitive costs order against Mkhwebane.

When the high court granted Gordhan an order last year temporarily suspending the remedial action by the public protector against him in the SA Revenue Services (Sars) report, the court ordered Mkhwebane — in her personal capacity — to pay the costs of Gordhan's application.

The high court also ordered costs against the office of the public protector.

While the Constitutional Court on Friday dismissed the application for leave to appeal by Mkhwebane and the Economic Freedom Fighters on the merits of the case, it set aside the personal costs order against Mkhwebane.

It also ordered that each party should pay their costs in the case before the Constitutional Court.

In her judgment setting aside the personal costs order, judge Sisi Khampepe said: “Was this a material misdirection by the high court that would warrant the interference of this court? The answer is yes.”

Khampepe said the high court did not furnish any reasons to justify a personal costs order against Mkhwebane.

Khampepe said judge Sulet Potterill disavowed any reliance on the adverse allegations made by Gordhan against Mkhwebane, which could have possibly merited the award of a personal costs order against her.

In the matter before the high court, Gordhan had alleged that Mkhwebane was incompetent, irrational and negligent in the performance of her duties.  

Khampepe said the high court did not take into account the adverse allegations advanced by Gordhan against Mkhwebane, as those allegations were not relevant to the granting of the interim order.

“Thus, absent reasons for granting a personal costs order against the public protector and disavowing the adverse allegations, there seems to be no factual basis for making a personal costs order.”

Khampepe said on numerous occasions the Constitutional Court had affirmed that a public official who acts in a representative capacity may be ordered to pay costs out of their own pockets in particular instances.

She said personal costs orders ensured that public officials who impermissibly flouted the constitution were held accountable.

Khampepe said a court would be derelict in its duties if it imposed a personal costs order where the facts did not justify that.

“Ordering personal costs where there is no factual basis to support this may have a deleterious effect on the public protector’s discharge of her vital constitutional mandate, whoever the incumbent might be.”