Mkhwebane: ConCourt's finding against me sets bad precedent

Public Protector Busisiwe Mkhwebane. (Pic: Netwerk24)
Public Protector Busisiwe Mkhwebane. (Pic: Netwerk24)

Public Protector Busiswe Mkhwebane has “noted” the judgement against her by the Constitutional Court on Monday, which will require her to personally pay 15% of the fees incurred by the SA Reserve Bank in the Absa/Bankorp matter. 

She warned that this would set a precedent for herself and future public protectors, who will be concerned about personal costs orders when making findings.

Mkhwebane was speaking after the ConCourt on Monday morning upheld the personal costs order against her.

In its damning majority ruling, the court also agreed with a previous ruling by the North Gauteng High Court that Mkhwebane's Absa/Bankorp investigation was flawed, and that she was not honest during her investigation. 

The apex court dismissed the SA Reserve Bank's application for a declaratory order to find that Mkhwebane had abused her office while she undertook the investigation.

Mkhwebane said she was encouraged by the minority’s ruling of the apex court that disagreed with the North Gauteng High Court’s decision that she be liable for the costs.

She disagreed with the majority ruling that she was dishonest under oath. Mkhwebane added that she is aware she cannot appeal the ruling of the highest court. Commenting to the media immediately after the judgment, she undertook to study it before commenting further.

In its majority judgment, the apex court ruled that Mkhwebane's fear that personal cost orders could negatively impact the work of her office in the future was unjustified. 

"The fears that the Public Protector has about the impact of a personal costs order on the institution of the Public Protector are unwarranted. Personal costs orders are not granted against public officials who conduct themselves appropriately.

"They are granted when public officials fall egregiously short of what is required of them."

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