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The Constitutional Court has granted Public Protector Busisiwe Mkhwebane direct access to challenge the constitutionality of the North Gauteng High Court ruling compelling her to pay 15% of the South African Reserve Bank’s challenge to her Absa report.
The North Gauteng High Court in February set aside Mkhwebane’s report on apartheid bailout money for Bankorp – which was bought by Absa – and ordered her to pay 15% of the costs in her personal capacity.
The Public Protector had released the Bankorp-Ciex report in June in which her office had found that the South African Reserve Bank’s R1.125-billion bailout for Bankorp between 1985 and 1995 was unlawful.
The report indicated that Absa, having bought Bankorp in 1992, should pay back the money.
On Tuesday, however, the Public Protector’s office welcomed a Constitutional Court decision handed down on Monday granting Mkhwebane leave to appeal the constitutionality of the personal costs order.
“Advocate Mkhwebane respects the courts and their constitutional authority to issue orders that bind all persons and organs of state to which they apply,” said Public Protector spokesperson Oupa Segalwe .
“In the same breath, it is her considered view that a personal costs order against a Public Protector, as a result of the discharge of their constitutional mandate, is a threat to the ideal of a Public Protector that must meet the standards of independence, impartiality and the exercise of powers and performance of functions without fear, favour or prejudice,” added Segalwe.
In March, the high court dismissed Mkhwebane’s bid to appeal the personal costs order, saying there was no reasonable prospect that another court would come to a different conclusion.
In that same month, Mkhwebane was also grilled by MPs over her failure to investigate ANC politicians Ace Magashule and Mosebenzi Zwane, for their alleged role in the Estina Dairy Farm scandal, in which about R250 million was reportedly looted from the Free State agriculture department’s coffers.
In June the Public Protector faced criticism for over stepping her powers after finding that Western Cape Premier Helen Zille should be held accountable by the provincial legislature for her comments suggesting that some aspects of colonialism were not bad.
The Public Protector found Zille as having “failed to act in good faith and in the best interest of good governance” and argued that “the premier’s actions did not comply with what was expected from a person holding the office of premier of the province”.
After coming to this finding, Mkhwebane was again accused of “prioritising cases against the opposition party while sheltering ruling party officials”.
Mkhwebane was also called to appear before Parliament’s portfolio committee on justice and correctional services in June to brief it on her office’s rules and policy in relation to the appointment of a special advisor.
The committee was also expected to discuss Mkhwebane’s fitness to hold after the Democratic Alliance wrote to National Assembly Speaker Baleka Mbete questioning the Public Protector’s fitness to hold office.
The matter in the Constitutional Court has now been set down for November 27 and Segalwe has indicated that Mkhwebane would not make any other public comments on the matter for the duration of the court process.
