ConCourt overturns personal costs order made against Public Protector

Public Protector Busisiwe Mkhwebane. (Raymond Morare)
Public Protector Busisiwe Mkhwebane. (Raymond Morare)
  • Public Protector Busisiwe Mkhwebane has noted the decision by the Constitutional Court to set aside a personal costs order against her. 
  • She says personal costs orders interfere with her work. 
  • Mkhwebane's office says she only challenged the interim order because of the inflammatory language used by Pravin Gordhan.

Public Protector Busisiwe Mkhwebane has commended the Constitutional Court for affirming the significance of her office by overturning a personal costs order made against her by the North Gauteng High Court in Pretoria.

In a statement issued on Friday evening, Mkhwebane said she had long argued personal cost orders interfered with her duty to perform her functions independently and without fear, favour or prejudice.

READ | EFF, PP lose ConCourt bid to appeal interdict against Gordhan remedial action

"In overturning the High Court's decision that advocate Mkhwebane should personally pay the minister's costs, the apex court held that the High Court 'materially' misdirected itself and failed to advance reasons justifying the decision.

"It added that there was no factual basis for the High Court to make a personal costs order against her," her spokesperson, Oupa Segalwe, said. 

Last year, the EFF and Mkhwebane approached the apex court seeking leave to appeal an order of the High Court which interdicted the Public Protector's remedial action against Public Enterprises Minister Pravin Gordhan while he took a report with findings made against him on review.


They failed on Friday, but the apex court granted them leave to appeal the High Court's costs order against the EFF and Mkhwebane in her personal capacity.

"Advocate Mkhwebane, therefore, commends the Constitutional Court for affirming the significance of the role her office plays in the country's constitutional democracy.

"While stating that the Public Protector is not immune to criticism, the court cautioned against comments that could be perceived as undermining the office and its constitutional powers," the statement said.

The apex court said there was no justification for a personal costs order against Mkhwebane.

"In fact, the High Court disavowed any reliance on the adverse allegations made by Mr Gordhan, which could have possibly grounded a personal costs order," the judgment read. 

Action taken

Last year, Gordhan went to the High Court on an urgent application, seeking an order to temporarily suspend the remedial action of the Public Protector in her report on allegations of maladministration at SARS by Gordhan, Ivan Pillay, Oupa Magashula, and others.

Mkhwebane recommended that President Cyril Ramaphosa and National Assembly Speaker Thandi Modise take action against Gordhan.

The High Court granted him the interdict he had sought and the Constitutional Court on Friday affirmed that.

Mkhwebane said she did not ordinarily oppose interim interdicts but had to in this instance. 

"The decisions to oppose the application for the interdict in the High Court and to apply to the Constitutional Court for leave to appeal the High Court ruling were largely informed by the inflammatory language used and baseless allegations made by the minister in his court papers, and the personal costs order, respectively," Segalwe said. 

Mkhwebane went further "to remind everybody concerned that her findings and remedial action in the matter in question stand until such time they are set aside by the court".

"The High Court has yet to hear the review application brought by the minister and other parties," Segalwe said. 

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