Mkhwebane says she shouldn’t have to pay for ‘mere legal errors’ – report

Public Protector Busisiwe Mkhwebane has reportedly said her office should be afforded the same status as judges who are not personally held liable for errors in their legal judgements or made to pay for wrongful ones.

This after the constitutional court upheld a personal costs order against Mkhwebane, dismissing her attempt to appeal it.

Mkhwebane told the Sunday Times that judges are guaranteed the independence of making decisions, which means they cannot be made to pay personal costs for their decisions or judgements, “no matter how egregious”.

The public protector was quoted as saying her office was guaranteed similar independence, a matter which she said the constitutional court had overlooked.

The highest court in South African law also ruled that Mkhwebane was not honest in her investigation into an apartheid-era deal between the South African Reserve Bank (SARB) and Absa bank, that she acted in bad faith, that she fell “egregiously short of what is required” of her office, and that her report on the matter was flawed, a ruling which could cost Mkhwebane up to R1 million.

Mkhwebane reportedly said the personal costs order against her would weaken the office she occupies, which she reportedly said is a position similar to that of a judge.

Mkhwebane was quoted as saying it appeared there was a serious oversight that judges’ “decisional independence is guaranteed by shielding them from punitive or disciplinary actions for ‘mere legal errors’ while the public protector must run the risk of punitive costs orders or bankruptcy each time she makes a decision or orders remedial actions which result in judicial review applications”.

“At the appropriate time, these issues will need to be considered by our judiciary as part of our ongoing efforts to strengthen our vibrant constitutional democracy,” she told the publication.

Mkhwebane said the personal costs order against her was “dangerous” because it could encourage politicians who are corrupt to approach the courts with the hope that it would be ruled that she partly foots the bill for their legal costs if her reports are successfully overturned.

The public protector was quoted as saying that this serves as a legal threat – “terrorem” – which is a weapon the corrupt could wield.

“[T]hey can threaten a judicial review each time and threaten personal costs orders against the public protector. No judge would ever serve in our judiciary if they were placed in a similar predicament,” she said.

Mkhwebane reportedly committed to resisting “threats and intimidation” while in office even if that resistance means she must pay, personally, for the legal costs.

“On the face of it, it appears to be a ploy to stop me from making adverse findings against the powerful, well-resourced politicians and other bureaucrats, but it will never work. I am committed to doing my work with dedication and vigour and such threats will not stop me,” she was quoted as saying.

It was reported that she said it was unfortunate that the office of the president was threatening to personally bankrupt her though the office of the president is constitutionally required to protect her own, a chapter 9 institution.

Mkhwebane was quoted as saying that it is accepted that the appeal process is there to correct errors that may have been made, however, it does not mean the competence and legal understanding of judges is questioned,“even when the appeal court finds gross errors on their part”.

“In my case there is the presumption that I am not entitled to the same decisional independence or allowed to err without being labelled incompetent. Unfortunately, that is the abusive language that even Minister [Pravin] Gordhan and President Ramaphosa have adopted,” the public protect was quoted as saying.

Mkhwebane told the publication she would have to find a way to settle the personal costs order, which could mean her entering into an arrangement because she does “not have that kind of money lying around”.

Mkhwebane reportedly dismissed allegations that an anti president Cyril Ramaphosa faction within the ANC was using her, describing the allegations as being “absurd”.

The public protector reportedly attacked the Democratic Alliance and other civil society organisations which have questioned her fitness to hold office, saying these organisations would never be seen “taking up the cause of the poor”.

“For instance, I named and shamed a number of state organs that ignore my remedial actions to the detriment of ordinary people. None of these organisations have taken such organs of state to task for their conduct, yet when certain powerful people are being held to account, these organisations are their first line of defence,” she was quoted as saying.

(Compiled by Makhosandile Zulu)

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