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

It's not over, says Busisiwe Mkhwebane as she praises ConCourt for cost order reprieve

By ANA Reporter Time of article published May 30, 2020

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Port Elizabeth - Public protector (PP) Busisiwe Mkhwebane on Friday in a statement has commended the Constitutional Court (ConCourt) decision to set aside a personal cost order against her by the North Gauteng High Court in July 2019.

The Pretoria high court in 2019 had granted the minister public enterprises, Pravin Gordhan, an interim interdict to stay the implementation of her remedial action while he took her report on review, in the so-called  “Rogue Unit” matter, relating to his term of office as SARS commissioner, .

The EFF and the PP in 2019 approached the ConCourt seeking leave to appeal the Gauteng High Court's decision to interdict her office's findings and remedial action against Gordhan.

While that appeal failed again on Friday, the ConCourt granted both parties leave to appeal the High Court's costs order against the EFF and Mkhwebane in her personal capacity.

However, the PP also said in the statement that the high court had not yet heard the review application by the minister on her findings and remedial action against him.

The office of the PP said in its statement on Friday that leave to appeal was granted against the costs order of the high court after the ConCourt found that the high court had not applied the applicable legal principles properly.

"In overturning the high court’s decision that Mkhwebane should personally pay the minister’s costs, the apex court held that the high court “materially” misdirected itself and failed to advance reasons justifying the decision," the statement from the PP's office said. 

"It added that there was no factual basis for the High Court to make a personal cost order against her.

"Mkhwebane has consistently argued that personal cost orders interfere with her duty to perform her functions independently and without fear, favour or prejudice.

"Mkhwebane, therefore, commends the Constitutional Court for affirming the significance of the role her office plays in the country’s constitutional democracy.

"While stating that the Public Protector is not immune to criticism, the Court cautioned against comments that could be perceived as undermining the office and its constitutional powers.," the statement said.

Quoting the judgement, the PP said that the ConCourt had confirmed the "fundamental constitutional significance" of her office. 

“Similarly, the Public Protector is a constitutional servant, like the courts, and her office should be afforded respect. It is an office of fundamental constitutional significance and her powers are not only desirable but also necessary for the purpose, inter alia, of holding public office bearers accountable," the judgement said. 

"Her role in our constitutional democracy cannot be gainsaid. While she may be criticised, these comments should not be perceived as undermining her Office and its constitutional powers. To mount a bad faith attack on her Office would surely work to undermine the constitutional project of the Republic,” it said.

According to the statement,  Mkhwebane also said that the matter against Gordhan was not over. 

"Mkhwebane further wishes to remind everybody concerned that her findings and remedial action in the matter in question stand until such time they are set aside by the court. The High Court has yet to hear the review application brought by the minister and other parties," the statement said.

African News Agency/ANA

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