Busi sues, you pay the dues

Going to court is expensive. Senior counsel can set you back R85 000 a day and when cases span years – as they often do, traversing the system – the bills can run into millions.

You also run the risk of a double blow if you lose, with the general rule being that costs follow the suit.

So, the stakes are high. But perhaps less so, when it’s not your money on the line.

The Constitutional Court has found Public Protector Busisiwe Mkhwebane is not personally liable for any of the (what must be exponential) legal fees she and the commissioner of the South African Revenue Service (Sars), Edward Kieswetter, racked up over the past two years, while they were battling it out over former president Jacob Zuma’s tax records. But someone is – the taxpayer.

The court has now ordered the public protector’s office to pay her costs and Sars to pay Kieswetter’s. But at the end of the day, both state-funded institutions will be using public money.

And there are so many ways in which the kind of public money they’ll be using – and the public money used in another two cases in which the Constitutional Court recently either overturned, or refused to issue, personal costs orders against Mkhwebane – could have been better spent.

It might be the correct position in law but it’s disappointing, regardless, that citizens will end up paying the price for Mkhwebane having taken a stance that the Constitutional Court itself described “misguided”.

She wound up being let off the hook because the court found her views appeared to have been “genuinely held” in spite of having been “misguided” and that the High Court in Pretoria – which had initially made a personal costs order against Mkhwebane – had erred in holding her to a “high degree of perfection”.

But that the public protector’s “genuinely held” views resulted in a stance as misguided as in this instance – where, in the main, the Constitutional Court found the law was crystal clear and she was wrong – must raise red flags.

And you cannot help but wonder if she would have had the same courage of conviction if she had been funding the litigation herself.

Perhaps “a high degree of perfection” is too lofty a standard to hold anyone too. But at the same time, as the high court had put it:

“One of the requirements she had to satisfy for her appointment as the public protector was that she had to be an advocate. There was a reason for this requirement and that reason was that the expectations were high that she would understand the law and would apply it in her daily conduct. She would not adopt the devilmay-care attitude in the face of the law, advice and genuine legal opinion.”

The public protector’s office is, undoubtedly, one vital to our constitutional democracy. And as Justice Mbuyiseli Madlanga – who wrote the Constitutional Court’s judgment in the case – pointed out, the institution itself is, at the end of the day, more important than the incumbent.

But the incumbent is, nonetheless, important. And in a country where resources are already spread so thin, we can ill afford to have her make expensive mistakes like this. While Madlanga warned the judiciary against contributing towards a weakened institution, perhaps the biggest threat at present is from within.

Bernadette Wicks.

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