The Constitutional Court on Monday dismissed Public Protector Advocate Busisiwe Mkhwebane’s application to appeal the Gauteng North High Court order that she should be personally held liable for the costs of the SA Reserve Bank.
This means Mkhwebane will have to pay 15% of the SARB legal costs, including three senior counsel, out of her own pocket. However, Chief Justice Mogoeng Mogoeng was part of the dissenting minority judgment which ruled that she shouldn’t be personally held liable for the legal costs in the matter.
The court’s judgment also agreed with the High Court ruling that her entire investigation into the Bankorp-CIEX matter was deeply flawed.
The court also said she was not entirely honest during her appeal application.
“We find that the public protector put up a number of falsehoods during litigation,” said the Constitutional Court on Monday.
The Constitutional Court, however, dismissed the Reserve Bank’s application for a declaratory order to find that Mkhwebane abused her office during the investigation.
Mkhwebane, who was present in court during the delivery of the judgment, denied that she acted in bad faith and lied during the investigation.
“I never told falsehoods … We have the utmost respect for the judiciary as one of the pillars on which our constitutional democracy rests. This will set a precedent for all other Public Protectors. It is not clear how we will be able to do our work without fear, favour or prejudice going forward,” said Mkhwebane.
“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 Constitutional Court’s latest judgment gives ammunition to those who say Mkhwebane is not fit and proper to lead the Office of the Public Protector.
Corruption Watch, one of her vocal critics, recently said her recent reports demonstrated an extraordinary level of professional incompetence and, of great concern, a lack of integrity.
“She has, in the course of her work, not only incurred the displeasure of the public but has suffered the extraordinary rebuke of having a personal costs order imposed on her by the High Court. She is clearly not fit to occupy this high office and must go or be removed,” said Corruption Watch in a statement.
On Sunday night, President Cyril Ramaphosa announced that he will seek an urgent judicial review of the Public Protector’s report, saying it was ‘fundamentally and irretrievably flawed’.
Ramaphosa’s decision followed a damning report released by Mkhwebane, which found that he deliberately misled Parliament and breached the Executive Ethics Code by failing to disclose the donations to the CR17 campaign.