Mkhwebane welcomes Chief Justice’s dissenting judgment

Public Protector Busisiwe Mkhwebane yesterday welcomed the dissenting Constitutional Court judgment penned by Chief Justice Mogoeng Mogoeng, with Acting Justice Patricia Goliath concurring, despite being caned by the other eight ConCourt judges.

“Although it is the majority judgment which matters, we take solace in the fact that there were dissenting views among the judges,” Mkhwebane said through the public protector Twitter account.

“This tells us that there were some among the esteemed Constitutional Court judges who saw things from our perspective. We will study the judgment.

“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.”

In his withering judgment, Mogoeng noted the reportedly R900,000 judgment could potentially bankrupt her.

“Ours are courts of substantive justice,” Mogoeng said. “No litigant ought to be left exposed to undeserved ruination just because they did not expressly plead noncompliance with legal requirements that are very loud in their cry for the attention of Lady Justice.”

The chief justice noted costs on an attorney and client scale were awarded where there was “fraudulent, dishonest, vexatious conduct and conduct that amounts to an abuse of court process”, and said the “personal costs definitional requirements of gross negligence and bad faith” had not been met.

With eight opposing views from the bench, the judgment itself was “pretty damning”, said political analyst Daniel Silke yesterday.

“The majority opinion heaps pressure on her now and her longevity in office certainly will be called into question as a result of the findings.”

Mogoeng said it ought to be known Mkhwebane “cannot” afford to pay and the “inescapable, albeit unintended, consequence of the high court order is to bankrupt her”.

According to the Public Protector Act, the public protector should not earn less than a high court judge which, in April 2018, was set at R2,027,241 a year.

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