Public Protector Busisiwe Mkhwebane.  Picture: Jacques Naude/African News Agency(ANA)
Public Protector Busisiwe Mkhwebane. Picture: Jacques Naude/African News Agency(ANA)

#BusisiweMkhwebane: What Mogoeng Mogoeng’s fiery minority judgment means

By Sihle Mlambo Time of article published Jul 24, 2019

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Johannesburg - Chief Justice Mogoeng Mogoeng penned a 17 000-word minority judgment in the matter involving the Constitutional Court upholding a punitive personal cost order against Public Protector Busisiwe Mkhwebane this week. 

The majority judgment, by a vote of 8-2, ruled that Mkhwebane should pay 15% of the South African Reserve Bank’s legal fees out of pocket after it successfully set aside her report into the Bankcorp lifeboat matter at the North Gauteng High Court (Pretoria).

The Constitutional Court was scathing against Mkhwebane, saying she had not acted in good faith, lied under oath, had a flawed investigative model and was dishonest. 

Mkhwebane’s role as public protector is under increasing scrutiny, with heated court battles regarding her reports being taken on review by President Cyril Ramaphosa and Public Enterprises Minister Pravin Gordhan.

Professor Karthy Govender, a constitutional lawyer who was formally with the University of KwaZulu-Natal's law faculty and a commissioner with the Human Rights Commission, said it was important to note that the court spoke through the majority judgment, while the minority judgment was seen as a voice of dissent. 

He said the minority judgment was not insignificant and also showed there was a level of disagreement in the final outcome. 

“I think the reason for the length (of the minority judgment) was to justify his conclusions, that happens sometimes when judges want to justify and explain in a sense why they differed, and when you write and you know it’s not going to be law and you want to persuade the correctness of your point,” he said.  

Govender said Mogoeng’s minority judgment had made some important points, but he felt the majority judgment, spoke to the frustrations of the taxpayer.

“The points that the chief justice has raised are important points, you dont wan’t people to be scared to make decisions. People will tell you with all the frustrations of dealing with government that people don’t make decisions quickly and this may cause more problems. 

“But I think the majority (judgment) view I could see is that ‘we have been allowing these things in the civil service to get away with it for far too long now’ and that she should not have made a sloppy ruling of this nature, there were basic errors compounded by a lack of candor,” he said. 

It is understood that the Public Protector’s legal bill will stand at close to R900 000 and some organisations are crowdfunding to assist her pay her legal bill to the SARB. 

Govender said the tone of the judgment suggested Mkhwebane was on her way out of the office. 

“One of my big concerns is that the respect for the office seems to depend on the incumbent and that is regrettable. To my mind, I hope the other heads of Chapter 9 institutions, that they as a group would sit down and see how this issue can be resolved. 

“It’s in no one’s interest to have impeachment process to be instituted, certainly not in our interest as a country trying to enshrine a Constitutional democracy to have office bearers dragged through that process. 

“But obviously, if that is the only alternative then it has to happen, but I am hoping some of the other Chapter 9 institutions could meet and work a way out of the quagmire. I do think that in light of the comments that were made in the judgment, which were made repeatedly and deliberately, it would be extremely difficult for the current public protector to remain in office,” he said.

Here are some of the points Mogoeng made in his 17 000 word minority judgment:

  1. This matter highlights the need to vigilantly guard against making personal costs against State functionaries acting in their official capacities fashionable, which is likely to have a chilling effect on their willingness to confront perceived or alleged wrongdoing especially by the rich, powerful or well-connected. 

  2. In all cases where this order was made, harm, actual or potential, was apparent. And so should it be in this case. It should only be in relation to conduct that is clearly and extremely scandalous or objectionable that these exceptional costs are awarded. I hasten to say that such conduct has not been shown to exist here. More importantly, no attempt has been made to demonstrate how the stringent legal requirements for awarding personal costs on a punitive scale were met. Not only does that inestimably harsh punishment remain unexplained but so is the disinclination to interfere with an order that is in my view not just and equitable. That the need to meet the requirements for punitive costs may not have been separately raised by a litigant cannot justify keeping an inexplicably gross injustice and inequity alive.

  3. A reading of the High Court’s judgment left me uncertain as to the bases on which personal costs were ordered against the Public Protector. The unspecified but  arguably deductible allusion to gross negligence and a somewhat unexplained but vaguely implied bad faith, albeit by converse reference

  4. Public office-bearers must be allowed the space to be human. And to err is human. It ought to take much more than ignorance, limited competence in one’s area of responsibility, poor judgement or incidental but harmless unfairness to others to order personal costs against an office-bearer litigating in a representative capacity. [47] A failure to guard against an easy award of costs of this nature could undermine the willpower to deal with everybody as they deserve to be dealt with. The knowledge that certain litigants are or could be unrelenting, and at times vindictive, in their pursuit of personal costs could arrest the zeal to do the right thing when that “special” category litigates. Indeed some of those with very deep or, so to speak, virtually bottomless pockets or those who are connected to the well-resourced could pull all their resources together to send a strong message that they are not to be touched. The knowledge of this possibility could cause office-bearers not to act against those people or institutions for fear of being mulcted with personal costs, even on an attorney and client scale. 

The full judgment, both minority and majority, can be read below:

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