Judgment reserved in Mkhwebane’s costs battle
Public protector Busisiwe Mkhwebane is already facing a R900‚000 personal costs order over her disastrous legal battle with the Reserve Bank – now the central bank wants her to personally pay the costs of her appeal against that order.
Chief justice Mogoeng Mogoeng on Tuesday reserved judgment in Mkhwebane’s challenge to the costs order against her, as well as the Bank’s application for Mkhwebane to be found to have “abused her office”.
Mkhwebane’s advocate, Vuyani Ngalwana, maintains that the costs order must be overturned‚ because Mkhwebane did not act in bad faith in her investigation into the apartheid-era bailout given by the Bank to Bankorp.
Instead‚ she showed bad judgment by failing to disclose certain meetings she had – including with then president Jacob Zuma’s office – prior to the release of the report.
Essentially‚ Ngalwana says‚ Mkhwebane made errors in her investigation and report but these should not be the basis of an adverse costs order against her.
Mkhwebane was forced to admit that she had got it wrong when she ordered that the Bank’s constitutional mandate be changed to no longer focus on protecting the value of the rand‚ as part of that report’s remedial action.
Arguing for the Bank in the Constitutional Court‚ advocate Kate Hofmeyr said that remedial action had resulted in the sale of R1.3bn in government bonds and caused a drop in the value of the rand.
Hofmeyr has urged SA’s highest court to dismiss Mkhwebane’s attempt to overturn the personal costs order granted against her in the case.
Should the court grant Mkhwebane leave to appeal against that order‚ Hofmeyr said‚ the Bank would ask it to find that she had abused her office.
She conducted a partisan investigation aimed at undermining the Bank‚ its lawyers stated in documents before the Constitutional Court.
In her report‚ Mkhwebane ordered the Special Investigating Unit to reopen its earlier investigation into the apartheidera lifeboat granted to Bankorp (later taken over by Absa), “to recover misappropriated public funds unlawfully given to Absa Bank”.
The high court ordered that she personally pay 15% of the Reserve Bank’s legal costs.
Mkhwebane now wants the Constitutional Court to rule that the costs order given against her impacts adversely and directly on the office of the public protector’s constitutional power‚ obligations and functions.