Public Protector Busisiwe Mkhwebane’s lashings from the courts will prove pivotal in holding public officials personally accountable in the future, according to an expert.

Yesterday marked the fourth court judgment that cast aspersions on the beleaguered corruption watchdog’s competence this year.

But Mkhwebane is set to appeal the High Court in Pretoria’s cost order against her, and its earlier decision to set aside her report on the Estina dairy farm project.

The latest judgment against her showed that Mkhwebane’s actions in the investigation had an impact on the poor, meaning she needed to be held directly liable, said legal analyst Phephelaphi Dube.

Judge Ronel Tolmay ruled that Mkhwebane should, from her own pocket, pay the Democratic Alliance (DA), who launched the application, and the Council for the Advancement of the Constitution of South Africa (Casac), who were second applicants, 7.5% of their legal costs respectively.

“The judgment flows from the reasoning of the Constitutional Court in the Absa matter. The minority decision was of the view that a personal costs order was not warranted because the litigants were institutions. But today’s decision makes it apparent that the public protector’s dereliction of duty had an impact on the poor,” said Dube.

Last month, the Constitutional Court made a similar costs order when it found she was dishonest about details of her investigation into the Absa/Bankorp bailout by the South African Reserve Bank – a case she took on two decades after the incident.

Tolmay expressed distaste at the fact that Mkhwebane maintained shortfalls in her report were due to a lack of resources. She subsequently used state resources opposing the DA’s bid for the report’s judicial review.

“Chief Justice Mogoeng Mogoeng drew a distinction between institutions and private individuals, implying that personal cost orders are more palatable when the rights of private individuals are infringed upon, rather than the mere interests of institutions,” said Dube. “Since the Estina dairy farm case involved poor and vulnerable farmers, this suggests Mogoeng Mogoeng could have supported a personal costs order in this regard.”

In the heat of a public and legal spat between herself and President Cyril Ramaphosa on two of her reports he was challenging, Mkhwebane was expected to approach the courts to appeal the judgment calling her report on the failed Free State dairy project “irrational”.

She ignored leaked emails on the Gupta family that are now subject to investigation by the Commisson of Inquiry into State Capture.

But Mkhwebane felt these judgments were setting a dangerous precedent for future occupants of her office, according to her spokesperson, Oupa Segalwe. He said punitive costs would scare future incumbents from holding powerful institutions and people to account.

“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,” said Segalwe, explaining why her office would be challenging both rulings on the matter.

“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 the monied.

“Unfortunately these judgments serve as a precedent for future occupants of the office, who will also be constrained when they must discharge their duties without fear, favour or prejudice,” said Segalwe.

INFO

Excerpt from judgment:

In handing down the costs judgment against Mhkwebane yesterday, Judge Ronel 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.”

– simnikiweh@citizen.co.za

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