Taxpayers, not Mkhwebane, are now liable for her court costs

Public Protector Busisiwe Mkhwebane during an outreach programme at the Rabasotho Community Center in Tembisa, 21 August 2019. She was joined by the mayor of Ekurhuleni, Mzandile Masina to hear and provide solutions to the communities problems. Picture: Neil McCartney

The Constitutional Court overturned the personal costs order made against Mkhwebane in the matter Public Enterprises Minister Pravin Gordhan launched against her.

Public Protector Busisiwe Mkhwebane no longer has to dig into her own pockets to cover any of the legal costs of the urgent court action Public Enterprises Minister Pravin Gordhan launched against her last year.

The Constitutional Court on Friday overturned the personal costs order Judge Sulet Potterill made against Mkhwebane, making her office liable and, indirectly, the taxpayer.

Last July, Mkhwebane released a report based on her investigations into Gordhan’s time as commissioner of the South Africa Revenue Service (Sars) and his alleged role in the “rogue Sars unit”.

She found Gordhan had violated the Executive Members Ethics Act and recommended President Cyril Ramaphosa take disciplinary action against him.

Gordhan subsequently approached the High Court in Pretoria, where Potterill granted him an interim interdict suspending the enforcement of Mkhwebane’s recommendations pending a judicial review of her report. Potterill made a personal costs order against Mkhwebane.

But Acting Deputy Chief Justice Sisi Khampepe yesterday delivered judgment on two applications for leave to appeal Potterill’s judgment – one from Mkhwebane and the other from the Economic Freedom Fighters (EFF). While she dismissed the applications insofar as they sought to appeal the merits of the judgment, Khampepe found Potterill had made “a material misdirection” in handing down a personal costs order.

“The EFF argues for a stricter test for interim interdicts against the public protector,” she said. “This is because the public protector exists for a ‘special reason’ in our constitutional democracy and, according to the EFF’s argument, ‘routine’ interim interdicts would undermine her accessibility and effectiveness”.

Khampepe found the argument – “while novel and interesting” – was without merit.

“The argument that the public protector exercises a constitutional power does not render her unique to the extent that a stricter test is required, which allows the granting of interim interdicts only in ‘extraordinary circumstances’,” she said.

Khampepe found the high court had not provided any reasons to justify a personal costs order, though.

“A court must be satisfied that the conduct of a particular incumbent, in the execution of their duties or conduct in litigation, warrants the ordering of a personal costs order,” she said.

“This cannot be done in the abstract and the facts must plainly support an order of this nature. … It appears to me that the high court plainly ordered a costs order against Ms Mkhwebane on the basis that she was cited in her personal capacity, as well as her official capacity, and thus applied the usual costs-should-followthe-result principle.”

Last year, Mkhwebane was found to be personally liable for 15% of the legal costs of setting aside her Reserve Bank report and 7.5% of those of setting aside her report on the Estina dairy scam.

Accountability Now’s Paul Hoffman SC said yesterday personal costs order were discretionary by nature.

“Nobody asked for a personal costs order against her in the high court. That’s something that the judge decided to do without being asked to,” he said of the Gordhan case.

Hoffman did not believe the setting aside of the personal costs order against Mkhwebane would have any significant bearing on any of her other cases.

Gordhan’s lawyer, Tebogo Malatji, yesterday issued a statement welcoming the judgment insofar as it dismissed the applications for leave to appeal the merits of Potterill’s judgment.

“The Constitutional Court judgment reaffirms the rights of persons to obtain interim relief, even against the public protector, in circumstances where the test as set out in prior Constitutional Court judgments has been met,” he said.

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