Mkhwebane’s case postponed

THE Constitutional Court has reserved judgment on Public Protector Busisiwe Mkhwebane’s application for leave to appeal against the R900000 personal cost order made against her.

Mkhwebane yesterday approached the apex court in a bid to reverse the North Gauteng High Court ruling which emanated from her legal battle with the South African Reserve Bank (Sarb) over the Absa/Bankorp matter which she investigated.

Mkhwebane had found in her report that Absa, which had bought Bankorp – the company that was loaned money by the Sarb during the apartheid era – now owed the government more than R1 billion.

The high court however set aside some recommendations of Mkhwebane’s report and also ordered her to personally pay 15% of the legal costs, after the Sarb challenged the report. Mkhwebane’s legal team had warned that the punitive legal costs would be disastrous for the effectiveness of Chapter Nine institutions.

Advocate Vuyani Ngalwana, for Mkhwebane, said the cost order would create a precedent if it was not overturned as it would make many other similar institutions unable to act without fear or favour. “Personal cost orders may now be sought against the auditor-general now that he has been given teeth to hold errant organs of state accountable,” Ngalwana said.

Kate Hofmeyr, on behalf of the Reserve Bank, said Mkhwebane had to personally incur the legal costs, including the ones for her appeal at the apex court, as her behaviour was unbefitting of her office.

Hofmeyr said while the central bank was aware of the negative precedence that would be created by slamming holders of critical public offices when there was unhappiness about their reports, Mkhwebane’s case was different.