Mkhwebane in bid to contest ruling that she pay legal costs

Public Protector Busisiwe Mkhwebane does not want to cough up the near-R1m ordered by the high court in the AbsaBankorp judgment.

She has applied for leave to appeal against the section of the judgment, handed down in February, that ordered her to pay part of the South African Reserve Bank’s costs in her personal capacity.

The advocate was not challenging the court’s decision to set aside her report and its remedial action but just the adverse findings against her.

Mkhwebane argued in her appeal that the full bench of the high court erred when it ordered that she pay the costs personally. She also said the court erred when finding that she did not fully understand her constitutional obligation to be impartial, according to her notice of motion filed in the high court last week.

Mkhwebane disagreed with the judgment that she had exceeded the bounds of indemnification that she received under the Public Protector Act.

She warned that the finding that she should pay costs personally would “stymie the fulfilment of a constitutional obligation by the public protector” and that it would “adversely impact on the public protector’s independence and impartiality in future investigations”.

She said it would have “farreaching implications” for Chapter 9 institutions that would then “operate in fear of personal adverse cost orders”.

She also noted that it was not her office that had brought the application before the court, saying she had merely responded to the bid to have her report set aside.

As such she should not be held personally liable for the costs, she argued in court papers seen by Business Day.

Mkhwebane said she had prepared the report in line with her constitutional obligations and that previous investigations into the same matter had also found irregularities in the “lifeboat transactions”.

In the report that was set aside, the protector found that R1.125bn should be recovered from Absa for an apartheid-era bailout granted to Bankorp, which was later bought by Absa. In a scathing judgment, the court expressed its displeasure at the manner in which the public protector had conducted the investigation. It found that Mkhwebane did not “fully understand her constitutional duty to be impartial and to perform her function without fear, favour or prejudice”.