ConCourt dismisses Mkhwebane's appeal against Bankorp costs order
The Constitutional Court has dismissed Advocate Busisiwe Mkhwebane’s appeal against a personal costs order.
JOHANNESBURG - The Constitutional Court has upheld the High Court order that Advocate Busisiwe Mkhwebane personally pay for 15% of the South African Reserve Bank’s legal fees in the Bankorp lifeboat matter.
In 2017, the Public Protector ordered the Special Investigating Unit to recover more than R1 billion on behalf of the central bank from Absa Bank but this report and its remedial action was reviewed and set aside last year.
BREAKING #PublicProtector the Constitutional Court has dismissed Advocate Busisiwe Mkhwebane’s appeal against a personal costs order. It has further criticised her for her conduct in the litigation, including submitting falsehoods to the court. BB— EWN Reporter (@ewnreporter) July 22, 2019
In the scathing majority judgment, Justice Sisi Khampepe said that Mkhwebane’s conduct warranted the personal costs order against her.
"This court upholds the High Court's finding that the Public Protector acted in bad faith and agrees with the High Court that she exceeded the bounds of her potential indemnification under the Public Protector Act."
Khampepe said that Mkhwebane misled the court.
"The Public Protector put forward a number of falsehoods in the cause of litigation, including misrepresenting under oath before the High Court, that the economic analysis that underpinned the final report was based on expert economic advice, whereas this was false as the report was not based on expert economic advice."
The minority judgment, however, found in favour of the Public Protector and would have granted her the appeal.
Following the ruling, the Public Protector's office responded via social media, saying that it would study the judgment.
PP: 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.— Public Protector SA (@PublicProtector) July 22, 2019
PP: 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.— Public Protector SA (@PublicProtector) July 22, 2019