Mkhwebane warns against personal legal cost effects
PUBLIC Protector Busisiwe Mkhwebane has warned that the punitive legal costs declared against her by the North Gauteng High Court will be disastrous for the effectiveness of Chapter Nine institutions.
Mkhwebane yesterday approached the Constitutional Court where she was appealing the cost order from her legal battle with the South African Reserve Bank (Sarb) over the Absa/ Bankorp matter she investigated.
Mkhwebane had found that Absa, which had bought Bankorp – the company loaned money by the Sarb during apartheid – now owed the government more than R1billion.
The high court however set aside some recommendations of Mkhwebane’s report and ordered her to personally pay 15% of the legal costs, after the Sarb challenged the report.
Mkhwebane’s advocate, Vuyani Ngalwana, said the cost order would create a bad precedent if it was not overturned as it would make other similar institutions unable to act without fear or favour in their roles.
“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 when reviews are sought against his reports,” Ngalwana said.
The Sarb had questioned why Mkhwebane had not come clean about the meetings she held after releasing her provisional report, including with former president Jacob Zuma.
Ngalwana disputed arguments by the Sarb that Mkhwebane acted in bad faith or with bias, even though he admitted the report was riddled with shortcomings.
“Committing procedural irregularity in an investigation is not to act in bad faith.
“There are remedies in law for that, including a review application which has proved effective in this case,” 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.
Judgment has been reserved.