Johannesburg - The Constitutional Court on Monday dismissed Public Protector Busisiwe Mkhwebane’s appeal against the high court ruling that should be held personally liable for a portion of the SA Reserve Bank's legal costs on her Absa/Bankorp report.
Mkhwebane’s investigation and its 2017 report were based on the R1.1-billion financial assistance for Bankorp by the Sarb between 1985 and 1991.
The public protector directed Parliament to amend the Constitution to strip the Sarb of its mandate to protect the value of the currency and revise its consulting obligations with the finance minister.
Last year, the central bank successfully challenged the report at the North Gauteng High Court, which ordered Mkhwebane’s office to incur the legal costs of the Sarb, with 15% of the cost to be paid by Mkhwebane personally, which she appealed with the apex court.
Here are 5 important points from the judgment:
1. No sound basis not to uphold the High Court’s costs order
Justice Sisi Khampepe said there was "no sound basis" not to uphold the North Gauteng High Court’s personal and punitive costs against the Public Protector due to her behaviour.
2. Mkhwebane had not "acted in good faith"
"Personal cost orders are not granted against public officials who conduct themselves appropriately. Instead, they are granted against public officials, like the Public Protector, in instances where their bad faith conduct falls short of what is required from them. In instances like these personal cost orders constitute an essential constitutionally infused mechanism to ensure that public officials act in good faith and in accordance with the law and the Constitution ," the majority judgment read.
3. Public Protector lied under oath
"The Constitutional Court found that the Public Protector had put forward a number of falsehoods in the course of the litigation, including misrepresenting under oath before the High Court that the economic analysis which underpinned the final report was based on expert economic advice, which it was not."
4. Mkhwebane’s entire model of investigation was flawed
"She failed to engage with the parties directly affected by her new remedial action before she published her final report. This court finds the Public Protector’s explanation for why she discussed the vulnerability of the Reserve Bank with the State Security Agency was unintelligible."
5. Public Protector was not honest about engagements
"The Public Protector failed to explain why she did not disclose any of her meetings with the Presidency in the final report or why, contrary to her general practice of producing transcripts of all meetings conducted during an investigation, she did not produce the transcription of her meetings with the Presidency or the State Security Agency, Justice Khampepe said.
Speaking shortly after the ruling, Mkhwebane denied that she had lied to the court.
“I never told falsehoods under oath. All the documents…we will study the judgment and we will study what is the reasoning behind that because our papers were very clear what transpired during the process,” she said."