I acted in good faith, says Mkhwebane over Bankorp report

Busisiwe Mkhwebane
Image: SANDILE NDLOVU

Public Protector Busisiwe Mkhwebane has maintained that she acted in good faith in her investigations involving the South African Reserve Bank, despite the Constitutional Court ordering her to pay 15% of the cost in the matter.

On Monday, the Constitutional Court dismissed Mkhwebane's appeal against a high court judgment which ordered that she personally pay 15% of the costs from her own pocket in a case involving the South African Reserve Bank.The court’s decision means that Mkhwebane is liable for an estimated R900,000 in court costs.

The majority of the court said there was no sound basis for it to interfere with the high court's discretion to grant punitive cost orders. The court held that punitive cost orders were granted when public officials fell egregiously short of what was required of them as public officials. The court said such cost orders were not ordered against public officials who acted appropriately.

However, a minority judgment written by chief justice Mogoeng Mogoeng, said he would have granted Mkhwebane's application for leave to appeal.After the court proceedings, Mkhwebane maintained that she acted above board in all her investigations.

“I never told falsehood under oath…our papers were very clear [as to] what transpired during the process…I acted in good faith and it is very clear from all my documents that this investigation was conducted purely based on that,” she said.

Mkhwebane said she noted the judgment and would study its contents before making an official statement.The judgment by the Constitutional Court follows Mkhwebane’s appeal against a 2018 high court judgment that set aside the remedial action contained in her 2017 Absa-Bankorp report‚ which found that Absa should repay R1.1bn to the Reserve Bank.The public protector’s remedial actions also directed parliament to amend the constitution in order to change the mandate of the South African Reserve Bank.

In the 2018 judgment‚ Mkhwebane was also ordered to personally pay 15% of the costs of the application by the Reserve Bank‚ on an attorney and client scale‚ including the costs of three counsel.The high court held that there was a reasonable apprehension that the public protector was biased in her investigation and that she did not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice.

The Monday judgment comes just a day after President Cyril Ramaphosa announced that he would be launching an urgent judicial review of Mkhwebane’s report, which found that he had violated the executive ethics code by deliberately misleading parliament in relation to a R500,000 donation made by Bosasa to his ANC presidential campaign.

Mkhwebane’s report, released on Friday, also found that there were merits to allegations of money laundering based on how the money was donated.

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