The apex court dismissed Mkhwebane’s appeal against a personal cost order that the North Gauteng High Court slapped her with last year.
Mkhwebane’s report in 2017 dealt with the R1.1 billion financial assistance paid by the apartheid government to Bankorp - now amalgamated into Absa - by the SA Reserve Bank between 1985 and 1991.
She recommended the recovery of the money from Absa and directed Parliament to amend the Constitution to strip the Reserve Bank 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, which saw the high court ordering Mkhwebane’s office to pay the bank’s legal costs, with 15% of the cost to be paid by Mkhwebane personally. It was this order that Mkhwebane took on appeal to the Constitutional Court.
On Monday, the court found that Mkhwebane had misrepresented information to the court and withheld some of the documentation she relied on while conducting her investigation.
The majority judgment, penned by Justice Sisi Khampepe and Justice Leona Theron, said there was no sound basis not to uphold the high court’s personal and punitive costs against the public protector as she had acted in bad faith while compiling her report.
“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 of them,” the judgment read.
The court said Mkhwebane’s entire model of investigation was flawed and that she was not honest about her meetings during her investigation. “She gave no explanation as to why there were no transcripts of the meetings with the Presidency and the State Security Agency (SSA), and why the vulnerability of the Reserve Bank was discussed with the SSA,” the court found.
The court also found that Mkhwebane’s conduct, including that of advancing “a number of falsehoods”, was not in accordance with the standard of conduct expected from pubic officials.
“This conduct included numerous misstatements, like misrepresenting under oath her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and reasons for why they had not been previously disclosed and generally failing to provide the court with a frank and candid account of her conduct in preparing the report,” the court said.
Speaking soon after the ruling, Mkhwebane denied 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.
Mkhwebane said the ruling had, however, created a precedent for all public protectors where it was no longer clear how they would be able to do their work without fear, favour or prejudice.
She had earlier threatened to take National Assembly Speaker Thandi Modise to court if she allowed the proposed probe into her fitness to hold office to go ahead.
DA chief whip John Steenhuisen said the official opposition would write to Modise and call for the inquiry into Mkhwebane to be expedited.
“The DA will further study the respective judgments and court papers in order to determine whether there are grounds for perjury charges to be laid against Mkhwebane,” Steenhuisen said.
Non-profit organisation Accountability Now on Monday said it had written to the Legal Practice Council regarding Mkhwebane’s conduct.
The organisation’s director, Paul Hoffman, said in the letter to the Legal Practice Council that it hoped the council took notice of the “serious, final and unappealable findings that reflect on the honesty, integrity and competence” of the public protector.
“We ask that the council look into the matter with the view to bring an application to strike Mkhwebane, who is a duly admitted advocate, off the roll.
“It is intolerable that an officer of the court be found lying under oath, as the highest court has found,” Hoffman said.
The Organisation Undoing Tax Abuse (Outa) called on Mkhwebane to take the necessary steps to vacate the office of the public protector immediately.
“The judgment against her is damning. She can no longer continue in that role,” said Advocate Stefanie Fick, Outa’s Head of Legal Affairs. Fick said Mkhwebane’s pushback against accountability measures by Parliament further underlined her lack of understanding of her role.
In June, Outa petitioned Parliament calling for an inquiry into Mkhwebane’s fitness to hold office as public protector due to the court judgments against her.