ConCourt orders Mkhwebane to personally pay estimated R900k over Bankorp report

Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Image: SANDILE NDLOVU

The Constitutional Court has delivered a scathing judgment on the public protector Busiswe Mkhwebane’s investigation into the SA Reserve Bank’s apartheid-era Bankorp bailout.

On Monday the Constitutional Court upheld the North Gauteng High Court judgment that Mkhwebane be personally liable for some of the costs in her litigation against Reserve Bank and Absa.

“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. She failed to engage with parties directly affected by her new remedial action before she published her final report,” Justice Sisi Khampepe said delivering the majority judgment.

Mkhwebane released a report in 2017 in which she said that Absa must repay R1.1bn to Reserve Bank for the bailout.

The Reserve Bank, Absa, finance minister and the National Treasury instituted a review application in the high court last year to set aside certain paragraphs of Mkhwebane’s remedial action.

The applicants argued that the manner in which the investigation was conducted and recommended remedial action were flawed and that she must pay 15% of the costs.

Mkhwebane asked the Constitutional Court to reverse the order that she be personally liable for an estimated R900,000.

In a split decision, majority of the Constitutional Court judges upheld the high court’s cost order.

“This court further rejects the Public Protector’s submission that the high court had erred by granting the personal cost orders against her in the absence of the Reserve Bank having sought this order in its founding papers,” said Justice Sisi Khampepe.

“We reject this submission because the public protector had conceded that all the facts which underpinned the high court’s order were set out by the Reserve Bank in its founding papers. Thus this court concludes that the Public Protector had sufficient opportunity to deal with these facts.”

This means Mkhwebane must pay an estimated R900,000 from her own pocket.

Constitutional Court also delivered a heavy blow to Mkhwebane after it found that she acted in bad faith and exceeded boundaries of the scope of her office.

“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. Furthermore, this court holds that the Public Protector failed to explain why she did not disclose any of her meetings with the presidency in the final report or why contrary to her general practise of producing transcripts of all meetings conducted during an investigation, she did not produce transcription of the meetings with the presidency or the SAA,” Khampepe delivered.

However‚ a minority judgment written by Chief Justice Mogoeng Mogoeng‚ said he would have granted Mkhwebane's application for leave to appeal.

This is a developing story.

- Additional reporting by Karl Gernetzky and Claudi Mailovich

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