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The North Gauteng High Court has dismissed Public Protector Busisiwe Mkhwebane’s attempt to appeal a personal cost order by the same court earlier this year, saying there is no reasonable prospect that another court will come to a different conclusion.
Mkhwebane was seeking leave to appeal to the Supreme Court of Appeal the cost order that was granted against her personally that she should pay 15% of the costs of the South African Reserve Bank on an attorney and client scale, including the costs of three counsel.
In February this year, the high court set aside Mkhwebane’s Bankorp-CIEX report and her finding that Absa was liable to pay R1.25bn to the government.
The court not only ordered her to personally pay some of her opponents’ legal costs, but it stated that she did not conduct herself in a manner which should be expected from a person occupying the office of the Public Protector.
Mkhwebane’s application for appeal was heard on Monday.
According to the judgment, the SA Reserve Bank launched a conditional application for leave to cross appeal against the part of the judgment and order of the court that dismissed its application for a declaration that Mkhwebane had abused her office during the investigation that led to the Bankorp-CIEX report.
Its application was conditional and the SA Reserve Bank wanted it granted only in the event that the court granted Mkhwebane leave to appeal.
After considering all arguments, the application for leave to appeal and also sections of the Superior Courts Act which Mkhwebane was relying on in making her application, the full bench of judges – Cynthia Pretorius, Nomonde Mngqibisa-Thusi and DS Fourie – dismissed her application with costs.
In a scathing ruling in February, the court found that “the Public Protector’s aim was to amend the Constitution to deprive the Reserve Bank of its independent power to protect the value of the currency. This is an aspect of the remedial action that had nothing to do with the Presidency and should have been discussed with experts at the Reserve Bank”.
On the back of that judgment, the DA wrote to National Assembly Speaker Baleka Mbete to expedite procedures to remove Mkhwebane from office on the basis of the court ruling.
The party’s chief whip John Steenhuisen wrote that the findings were particularly damning and that Mkhwebane had completely misconstrued her powers.
