No evidence to justify personal costs order against Busisiwe Mkhwebane, rules Constitutional Court

15 December 2020 - 13:22 By Franny Rabkin
The Constitution Court found there was no evidence to justify a personal costs order against public protector Busisiwe Mkhwebane. File photo.
The Constitution Court found there was no evidence to justify a personal costs order against public protector Busisiwe Mkhwebane. File photo.
Image: Moeletsi Mabe

The Constitutional Court on Tuesday warned against a trend of litigants seeking personal costs orders against the public protector in almost every case.

In a scathing hand-down of the Constitutional Court’s judgment, justice Mbuyiseli Madlanga said a unanimous court had set aside a personal costs order against public protector Busisiwe Mkhwebane as there was not a “scintilla of evidence” to justify it.

“The public protector’s office is more important than any incumbent. As the judiciary we must not be guilty of contributing to the weakening of that office by making indefensible personal costs awards. You weaken that office, you weaken our constitutional democracy,” Madlanga said when handing down the judgment.

The case concerned an appeal by Mkhwebane against a high court judgment that found she did not have the legal power to subpoena a person’s tax records.

On this, the main issue in the case, the ConCourt dismissed her application for leave to appeal, saying she had not shown it was in the interests of justice that the highest court should hear the appeal directly, leapfrogging the Supreme Court of Appeal.

The Pretoria high court had also ordered Mkhwebane to pay 15% of the SA Revenue Service (Sars) commissioner’s legal costs out of her own pocket. On this, the ConCourt granted leave to appeal, and sternly set aside the high court order.

Madlanga said personal costs orders against public officials were warranted only when their conduct was egregious or they had disregarded their professional duties.

He went through Pretoria high court judge Peter Mabuse’s reasons for the personal costs order against Mkhwebane, and explained why each was incorrect.

While Mkhwebane may have been misguided that she was entitled to subpoena tax records, it appeared this was a genuinely held view, said Madlanga. It was not done “in fraudem legis” or to evade or circumvent the law, as Mabuse had found, he said. 

Madlanga was particularly scathing about Mabuse’s strong words that Mkhwebane had shown, in this case, “a proclivity to act outside the law” and “a deep-rooted recalcitrance to accept advice from senior and junior counsel”.

Madlanga said “proclivity” meant a pattern, but the judge had only referred to one instance in which he said she was acting outside the law.

“How that becomes a proclivity escapes me,” he said.

On the issue of the advice of counsel, Madlanga said Mkhwebane had received two conflicting opinions - one from Hamilton Maenetje SC and another from Muzi Sikhakhane SC - and had preferred one of them. 

“The correct legal position could have been what was stated in one, or the other, or neither,” Madlanga said.

The high court’s conclusion “beggars belief and is gratuitous”, he said.

Madlanga said this costs order and one that had previously come before the Constitutional Court in the public protector v Pravin Gordhan case were “most worrisome”.

He said of four cases before the ConCourt in which personal costs orders against the public protector were an issue, the highest court had sanctioned only one.

His caution was not made out of a “maudlin sympathy for the public protector”, he said.

“I am not even saying personal costs awards against the public protector must be made sparingly. That is not the law. I am saying courts must apply the existing law properly.”

In a statement, Mkhwebane's office said she welcomed the judgment. It added that she would be studying it, and deciding what action to take going forward.

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