Mkhwebane tells ConCourt personal cost order will set bad precedent

In Public Protector advocate Busisiwe Mkhwebane’s appeal of a personal cost order handed down by the Pretoria High Court that she personally pay 15% of the legal costs after the court set aside her Bankorp-Ciex report, her legal team reportedly told the Constitutional Court today that the order would set a bad precedent for the Public Protector’s office.

A full bench of the high court handed down a scathing judgment against Mkhwebane earlier this year.

The judges set aside her Bankorp-Ciex report, which found that R1.125 billion needed to be recovered from Absa Bank for a bailout paid to Bankorp by the South African Reserve Bank (Sarb) during apartheid.

The court ordered Mkhwebane to pay 85% of the costs for Absa and the Reserve Bank in her official capacity, but to also personally pay 15% of the costs.

Former finance minister Malusi Gigaba‚ the Sarb, and Absa had complained that Mkhwebane had made her findings based on information riddled with factual inaccuracies. The problems with her findings include overlooking material facts provided by other parties.

Mkhwebane’s findings, which were effectively rendered null and void by the court, included that government had neglected its constitutional duty by failing to implement the findings of the Ciex report from a company established by British investigator Michael Oatley.

In July, the Constitutional Court granted Mkhwebane leave to appeal the personal costs order after in March the high court dismissed her bid to appeal.

News24 reports that Mkhwebane’s legal team had questioned whether it would be reasonable, appropriate, or desirable for the Public Protector’s office to be awarded a punitive costs order.

Judgment on the matter has been reserved.

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