Mkhwebane admits to her own ‘bad judgment’ in effort to avoid having to pay legal costs

Public Protector Busisiwe Mkhwebane’s advocate Vuyani Ngalwana argued in the Constitutional Court today that she showed bad judgment, but did not act in bad faith, when she did not disclose her meeting with then president Jacob Zuma on June 7.

Mkhwebane approached the ConCourt for direct access – skipping the Supreme Court of Appeal after the High Court in Johannesburg’s refusal to hear her appeal – in hopes of overturning a costs order made against her by the high court.

In one of her earliest – and most controversial – findings to date, Mkhwebane “found” there were a multitude of government “failures” around the CIEX report. Mkhwebane in effect agreed with CIEX that government and the South African Reserve Bank (Sarb) had failed in their supposed duty to recover a R3.2 billion apartheid-era “lifeboat” bailout given to Absa/Bankorp by the pre-democratic government.

Mkhwebane ordered the Special Investigating Unit to recover the money and that the constitutional raison d’etre of the Reserve Bank should be amended, a recommendation her detractors slammed as an overreach on her part and indefensible interference in the independence of the central bank.

It all fell apart when handwritten notes detailing her meetings with Zuma’s legal adviser were discovered by Sarb and Absa representatives, who subsequently cried foul because these meetings had never been disclosed by the public protector.

“This all took place under circumstances where she failed to afford the reviewing parties a similar opportunity to meet with her,” the high court found.

The court subsequently overturned Mkhwebane’s findings and ordered she pay 85% of the costs of Absa and Sarb in her official capacity, as well as 15% of the costs from her own pocket.

Mkhwebane is only appealing the 15% she has to pay.

“Bad judgment is not to be punishable by an adverse and punitive costs order,” said Ngalwana in response to a question by Chief Justice Mogoeng Mogoeng.

The Council for the Advancement of the SA Constitution’s (Casac’s) Lawson Naidoo, however, disagreed.

“I think it speaks directly to that issue and [that] someone who [lacks] proper judgment should not be occupying the office [of the public protector],” said Naidoo.

Casac has its own issues with Mkhwebane, having taken her to court over the Free State Vrede dairy project, seeking a declaratory order that she failed to discharge her duties in terms of the constitution as well as the Public Protector Act, and that her report into the Vrede dairy project be set aside as being unconstitutional, unlawful and invalid.

Lawson is also a seeking a punitive personal costs order against Mkhwebane and is awaiting judgment in that case.

The Constitutional Court reserved judgment on Tuesday afternoon.

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