Guest Column

Mkhwebane must learn from ConCourt finding

2019-07-23 13:30
Advocate Busisiwe Mkhwebane at the Constitutional Court on Monday, 22 July. Photo: Felix Dlangamandla

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 mistakes.                                                   

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 democracy.

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 court.                                                         

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 action.

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 well.                       

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 faith.                                                                   

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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