Pretoria - In another legal blow to Public Protector Busisiwe Mkhwebane, the Gauteng High Court Pretoria on Wednesday turned down an application by her for leave to appeal against last month’s judgment and subsequent order that she personally pay 15% of the costs of the application by the SA Reserve Bank.
A full bench (three judges) in February set aside Mkhewbane’s direction to the Special Investigating Unit (SIU) to reopen its investigation into the apartheid-era bailout granted to Bankorp that Absa should repay R1.25 billion to the Reserve Bank.
As part of its order, the court ruled that she had to pay 85% of the Reserve Bank’s legal costs in her official capacity and 15% in her personal capacity.
The court at the time in a scathing judgment, said: “In the matter before us it transpired that the Public Protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice.”
The court said it was necessary to show its displeasure with the unacceptable way in which she conducted her investigation as well as her persistence to oppose the applications before the court, “to the end.”
In turning down Mkhwebane’s application for leave to appeal the costs order against her, Judge Cynthia Pretorius said the court stood by its reasons for ordering the costs order against her.
She said there is no reasonable prospect that another court will come to a different conclusion due to the reasons set out in last month’s judgment.
Mkhwebane wanted to turn to the Supreme Court of Appeal in Bloemfontein to overturn the costs order and subsequently the damning findings against her. Her only option now is to directly petition the SCA for leave to appeal. If that failed, she has no choice but to dig into her own pocket.
Pretorius, who wrote last month’s damning judgment, found that the public protector had jumped the gun and simply made her own findings when she directed that Absa had to repay the R1.25-billion.
“The outcome of the investigation is premeditated as the public protector informed the SIU that Absa is guilty. She does not leave the investigation to the SIU to determine whether Absa is guilty and has to pay back R1.25-billion. She has already found Absa to be liable and decided that they money must be paid back,” the judge said.
The matter followed the final report issued by Mkhwebane into the “alleged failure to recover misappropriated funds”. She made certain factual findings and came to certain conclusions in the report, which includes that the South African Government had failed to implement the CIEX report which dealt with alleged stolen state funds, after commissioning the report from CIEX.