ConCourt upholds cost order against Mkhwebane, rules she was 'not honest' in Absa investigation

The Constitutional Court on Monday upheld the personal costs order against Public Protector Busisiwe Mkhwebane, saying she had put forward a "number of falsehoods". 

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 SA Reserve Bank's application for a declaratory order to find that Mkhwebane has abused her office while she undertook the investigation.

"This court holds that the public protector's entire model of investigation was flawed and that she was not honest about her engagements during the investigation. In addition, she failed to engage with the parties directly affected by her new remedial action before she published her final report," reads the majority judgment. 

"This court finds that the public protector's explanation for why she discussed the vulnerability of the Reserve Bank with the State Security agency was unintelligible." 

The majority judgment also ruled Mkhwebane failed to explain why she did not disclose any of her meetings with former President Jacob Zuma in her 2017 report. She also did not produce transcripts of her meetings with the presidency or the State Security Agency.

The court also ruled that the public protector put forward "a number of falsehoods in the course of litigation", including misrepresenting under oath the economic analysis that underpinned her investigation.

In the minority judgment, two of the court's justices argued that the High Court judgment should be set aside, as the requirements of gross negligence or bad faith had not been met. According to the minority judgment, the personal costs order against her could "ruin her financially and possibly shipwreck her occupation". 

'Misappropriated public funds'

The public protector, in a report published on June 19 2017, had tasked the Special Investigating Unit with recovering R1.125bn in "misappropriated public funds", describing the funds as an "illegal gift" given to Bankorp by the SA Reserve Bank in the 1980s. As Bankorp and other banks were later subsumed into Absa, Mkhwebane ruled that the funds be recovered from Absa.

Following the publication of her report, the central bank, the minister of finance, Absa and Treasury instituted review applications set aside her directive that the SIU recover funds from Absa. These applications were later consolidated. 

The North Gauteng High Court in Pretoria set aside Mkhwebane's findings in February 2018, citing a "reasonable apprehension of bias" in her work. Mkhwebane was also ordered to personally repay 15% of the SA Reserve Bank’s legal costs, while the office of the Public Protector was ordered to pay the remaining 85%. 

Mkhwebane's applications for leave to appeal the judgment in the High Court and the Supreme Court of Appeal were refused.   

The public protector then sought leave to appeal the section of the ruling relating to her personal liability for the legal costs in the Constitutional Court. The case was heard in November 2018.

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