Bad judgment not bad faith – Busi

CONCOURT: APPEALING SARB AND ABSA COSTS ORDERS

Public Protector hid her meeting with then president Zuma prior to report.

Public Protector Busisiwe Mkhwebane’s advocate argued in the Constitutional Court yesterday that she had shown bad judgment, but did not act in bad faith in not disclosing her meeting with then president Jacob Zuma on June 7 last year.

“And bad judgment is not punishable by an adverse and punitive costs order,” advocate Vuyani Ngalwana added.

Lawson Naidoo , of the Council for the Advancement of the South African Constitution, disagreed.

“I think it speaks directly to that issue.

“Someone who knocks a proper judgment should not be occupying such an office,” he said.

Mkhwebane had approached the Constitutional Court for direct access – skipping the Supreme Court of Appeal – following the High Court in Pretoria’s refusal to hear her appeal to overturn a costs order made against her by the high court.

In one of her earliest and most controversial findings, Mkhwebane cited a multitude of government “failures” related to the CIEX report.

The predominant one was that the government and the South African Reserve Bank (Sarb) had failed to recover a R3.2 billion “lifeboat” from Bankorp, then a Sanlam subsidiary later absorbed into Absa, more than two decades ago.

Mkhwebane had ordered the Special Investigating Unit to recover the money and for Sarb’s constitutional mandate to be amended.

It all fell apart when handwritten notes detailing her meetings with Zuma’s legal advisor were discovered by Sarb and Absa representatives.

They subsequently cried foul because the public protector had not disclosed that these meetings took place.

“This all took place under circumstances where she failed to afford the reviewing parties a similar opportunity to meet with her,” the high court found.

The high court subsequently overturned Mkhwebane’s findings and ordered she pay 85% of the legal costs of Absa and the South African Reserve Bank in her official capacity, and 15% from her own pocket.

Mkhwebane is only appealing against the 15% she has to pay personally.

The Constitutional Court has reserved judgment. –