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Advocate Busisiwe Mkhwebane at the Constitutional Court on Monday, 22 July. Photo: Felix Dlangamandla (Felix Dlangamandla)
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Mkhwebane owes us, South Africans absolute fiduciary duties. We expect her to execute her duties without fear or favour so that her decisions can indeed strengthen our democracy, writes Mahlodi Muofhe.
On Monday, July 22, the Constitutional
Court held that the Public Protector, Advocate Busisiwe Mkhwebane must pay the
costs out of her own pocket for the protracted litigation in the matter
between her office and the SA Reserve Bank (SARB) and Absa/Bankorp.
The court agreed with the North Gauteng
High Court that her entire Absa/Bankorp investigation was flawed, and that
Mkhwebane was not honest during her investigation. The apex court dismissed the
SARB's application for a declaratory order to find that Mkhwebane has abused
her office while she undertook the investigation.
It is perhaps uncollegial to opine on
the behaviour of a colleague in the same profession. I otherwise hold that as
colleagues in the same profession we owe it to ourselves to critique ourselves
privately when we meet but if circumstances so demand do so openly with the
hope that we will learn from our
Since assuming office Mkhwebane has had
the misfortune of getting some of her reports and remedial actions thereof set
aside by our courts on review. By any stretch of the imagination this does not
bode well for the integrity and image of this critical Chapter 9 institution.
This institution was set up solely inter alia to strengthen our constitutional
It must pain the high courts generally and
our apex court, the Constitutional Court, particularly, to find themselves in a
position where they have to make adverse findings against the Public Protector.
The powers and functions of the Public Protector are succinctly put in the
Public Protector Act and further emphasised in the Constitution of South Africa.
Were Mkhwebane to simply stick to these acts
and other enabling acts to fulfil her duties, the purpose and import of our
Chapter 9 institutions, which we so dearly need to strengthen our democracy
would be greatly enhanced.
Our judicial system recognises that a
lower court can err at times in its application of the law during its
adjudicative process. To cure the error of the lower court, a higher court, the
highest court in criminal matters being the Supreme Court of Appeal (SCA), or
our apex court on constitutional matters being the Constitutional Court, on
appeal or review of any matter may partially or wholly set aside a decision
which was erroneously arrived at by a lower
The Public Protector’s reports and recommended
remedial actions are subject to these review processes by litigants whose
rights would have been adversely affected. Our Constitution enjoins the Public
Protector to investigate matters brought before her clinically and prudently to
ensure that instead of adversely tempering with the rights of those she would
have investigated her final reports and remedial actions must of necessity pass
the legal constitutional muster. Failure to pass this test achieves the
negative unintended results which are inconsistent with the spirit and purport
of the Constitution.
It was not without thought that we
crafted the Chapter Nine institutions in our Constitution. We had recognised
the injustices of the past, especially those which were committed against
vulnerable people who could not easily access the doors of justice. Some of our
people were sentenced to death for fighting to liberate our country from the
past injustices of the apartheid regime.
Anyone occupying a leadership position in
any of our Chapter 9 institutions must thus know that they occupy a
position of trust. The rest of the over 55 million South Africans rely largely
on her/his objective judgement when releasing her/his report and remedial
Mkhwebane owes us, South Africans
absolute fiduciary duties. We expect her to execute her duties without fear or
favour so that her decisions can indeed strengthen our democracy. The majority
decision delivered by Justice Sisi Khampepe in this matter is a difficult
pill to swallow for me and, I would imagine, members of the legal
profession specifically and the broader South African communities as
The judgment unequivocally told us that Mkhwebane,
crudely put, lied in this matter. She misled us, South Africans. For our apex
court to pronounce that the Public Protector proffered several falsehoods in
her investigation is something I hope Mkhwebane is, or should be,
seriously concerned about. The holder of this position in terms of the Constitution
is someone whose integrity shouldn’t be doubted, in particular by the ConCourt.
The Public Protector’s behaviour must be beyond reproach. Her decisions or reports
must be distinctly clear and untainted.
As Khampepe delivered the majority decision
a chill went through my spine. Mkhwebane was faced with a final cost order
decision to pay from her own pocket. Courts by their nature seldom order
that a party to any litigation acting on behalf of any institution, in
particular a public institution like the Public Protector Office, should
personally bear the costs. The costs in such litigations of necessity are
usually borne by the said public entity. In this instance the Public
Protector has to pay 15% of the costs in her personal capacity.
Mkhwebane may want us to believe that the
judgment ties not only her hands but also the hands of her successors in the
coming years when her term ends. I humbly submit that she errs yet again in her
comprehension of the ConCourt decision. I hope that her legal advisors on this
one will advise her appropriately and interpret the court's decision
contextually to her.
The cost order against Mkhwebane in my
humble opinion is aimed at deterring her personally, not any future successor,
from irrational decision making. Her bad faith conduct, as Justice Sisi
Khampepe so ordered is a terrible indictment on her personally, not on her
future successors unless, they too, act in bad
I genuinely hope that our Public
Protector will learn from this judgment that she has to act in good faith when
discharging her duties. The Constitution directs her to do likewise so that her
decisions can strengthen our democracy. She must desist from litigating
frivolously and vexatiously. The costs of any litigation, if she isn’t reminded
by this costs order against her personally, will otherwise always be borne by
South Africans through taxes.
- Mahlodi Muofhe is an advocate based in Johannesburg specialising in human rights law.
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