Public Protector Busisiwe Mkhwebane

Johannesburg - Chief Justice Mogoeng Mogoeng has shed some light on the recent Constitutional Court judgment involving Public Protector Busisiwe Mkhwebane. 

On Monday, a majority Constitutional Court judgment upheld a Gauteng North High Court decision that Mkhwebane pay 15% of the South African Reserve Bank’s legal fees out of her pocket for a flawed report she penned on the matter involving the Bankcorp lifeboat saga. The fees are reported to be around R900 000.

Mogoeng, who was opposed to the majority judgment of the ConCourt, penned a fierce 17 000 word minority judgment detailing why the punitive personal cost order against Mkhwebane should be overturned in the highest court in the land. 

Mogoeng had also been scathing on Mkhwebane's conduct, but disagreed strongly in his minority judgment that the high court had demonstrated soundly why it awarded a punitive personal cost order against Mkhwebane.

Eight Constitutional Court judges disagreed with him, with only Judge Patricia Goliath siding with him in the matter.

The majority judgment, is the official judgment of the court, while the minority judgment is seen as a dissenting voice with no legal standing. 

Mogoeng, who appeared on SAFM on Friday, was asked about the judgment and the fracas that followed. 

He said he could not discuss the matter in great detail, saying he was bound by his ethical conduct. 

He implored South Africans to read the judgment from the Gauteng North High Court, the majority judgment from the ConCourt and his 17 000 word minority judgment. 

He remarked: “Law is about logic, it is like reading a newspaper. It has got to make sense to you. If you read a judgment and it doesn’t make sense to you, there is something wrong. It’s all about logic, so read the judgments (high court, majority and minority judgment), you will appreciate what the different judgments say and which one you agree with,” he said. 

In Mogoeng's minority judgment, he points out in some detail that the high court had failed to demonstrate why it had awarded costs.

In the high court judgment, the court said in awarding costs: “Having regard to all the above considerations, we have to conclude that this is a case where a simple punitive costs order against her in her official capacity will not be appropriate. This is a case where we should go further and order the Public Protector to pay at least a certain percentage of the costs incurred on a punitive scale”.

Mogoeng said on the order in his minority judgment: " It leaves us none the wiser. And the question is which legal principle did the High Court rely on for venturing into this high-level novelty? Did it rely on all that it says in its judgment under costs or even on “all the above considerations”, which would include what precedes the costs section of the judgment? 

"That is how woefully inadequate the High Court judgment is in addressing this all-important subject of personal costs on a punitive scale. Whatever the court intended, it does not accord with this court’s jurisprudence. More importantly, “all the above considerations” at this stage of the judgment ought really to be confined to punitive costs in a personal capacity," he wrote. 

"Having decided to award personal costs against the Public Protector, the High Court should therefore have embarked on another process. And that is to state the principles it relied on and explain how the legal requirements for costs on an attorney and client scale, authoritatively laid down by this court, were met. 

"Needless to say, we have affirmed the pre-constitutional position on punitive costs. These costs are to be granted against a litigant whose claim is frivolous, vexatious or manifestly inappropriate. To justifiably rely on her opposition of the three applications to the end for awarding personal costs on an attorney and client scale, a proper explanation would be necessary. 

'The High Court should have explained just how the Public Protector’s opposition helps meet one or more of these requirements. This is so because the Public Protector had the right to defend the three applications to the end. Good reason is required to not only deny her this right but to also rely on her exercise of that right, to mete out such an unprecedentedly harsh punishment to her," he wrote.

The Sunday Independent 

** This article has been updated