In yet another stinging court defeat for Public Protector Busisiwe Mkhwebane, the high court on Thursday made a personal and punitive costs order against her in litigation over her report into the Gupta-linked Vrede dairy project.
Judge Ronel Tolmay’s order follows a similar order by the Constitutional Court in July. The highest court in South Africa made a personal and punitive costs order against Mkhwebane after finding that she acted in bad faith, and was dishonest with the courts in litigation over her report into 1980’s bail-out by the Reserve Bank of Bankorp, which was acquired by Absa in 1992.
In handing down the costs judgment, Tolmay said: “In my view, her conduct in this matter is far worse, and more lamentable than that set out in the Reserve Bank matter. At least there her failures impacted on institutions that have the resources to fend for themselves. In this instance her dereliction of duty impacted on the rights of the poor and vulnerable in society, the very people, for whom her office was essentially created.”
In May, Tolmay set aside the public protector’s report into the Vrede dairy project in Free State. She said then that Mkhwebane had narrowed the scope of the investigation so dramatically that it “side stepped all the crucial aspects regarding the complaints and led to a failure on her part to execute her constitutional duty”.
However, she delayed her decision on how to award costs until the Constitutional Court had given its judgment in the Reserve Bank case.
Tolmay quoted extensively from the Constitutional Court’s judgment and even from the dissenting minority judgment by Chief Justice Mogoeng Mogoeng, which said that extraordinary circumstances should be present for personal and punitive costs order.
She said: “Her conduct during the entire investigation constitutes gross negligence. She failed completely to execute her constitutional duties.”
However, the public protector’s spokesperson, Oupa Segalwe, said she was disappointed with the order. “It is her understanding that before such a ruling is made, the court must have satisfied itself that the party against whom a punitive cost order is made acted fraudulently, recklessly and was engaged in gross dishonesty. These were not proven and yet she was slapped with such an order.”
Segalwe said Mkhwebane would be challenging both the first and today’s orders. “In particular, the personal cost order continues down the path of scaring her off with bankruptcy so that she can think twice before making adverse findings against the powerful and monied.”
Tolmay ordered that Mkhwebane pay 7.5% of the Democratic Alliance’s costs and 7.5% of the costs for the Council for the Advancement of the South African Constitution (the applicants in the case) from her own pocket and on an attorney and client scale, which is a significantly higher rate than the normal “party and party” scale set by the taxing master of the court.
Thursday’s judgment was yet another defeat for the public protector in a series of court battles over politically sensitive reports. In addition to Tolmay’s earlier judgment, and the crushing judgment from the Constitutional Court, the high court has granted an interim interdict to suspend her remedial action in her report into allegations of a “rogue unit” at Sars.
It also found against her in the application by President Cyril Ramaphosa over the remedial action she directed in her report into the early pension pay-out of former Sars deputy commissioner Ivan Pillay. Both of these applications were strenuously opposed by the public protector.
The high court has also suspended the remedial action she directed against the president in her Bosasa report looking into donations to Ramaphosa’s CR17 campaign. However, this was by agreement between the parties.
Lawson Naidoo of Casac (Council for the Advancement of the South African Constitution) said Thursday’s judgment needed to be read together with the main judgment on the merits, which found that she did not explain why she changed the remedial action from the earlier, provisional report. “That, for me, is evidence of bad faith,” said Naidoo.
The DA’s John Steenhuisen said in a statement that the judgment showed Mkhwebane was ”wholly unfit and improper to hold the office of such a crucial Chapter 9 body.”