Mkhwebane battles costs order in top court
Public Protector Busisiwe Mkhwebane is already facing a R900 000 personal costs order over her disastrous legal battle with the Reserve Bank – now the central bank wants her personally to pay the costs of her appeal against that order, says a TimesLIVE report.
Chief Justice Mogoeng Mogoeng yesterday reserved judgment in Mkhwebane’s challenge to the costs order granted against her, the first given against a Public Protector, as well as the bank’s application for Mkhwebane to be found to have ‘abused her office’.
Advocate Vuyani Ngalwana argued that Mkhwebane did not ‘act in bad faith’ in her investigation into the apartheid-era bailout given by the bank to Bankorp, but ‘showed bad judgment’ by failing to disclose certain meetings she had – including with then-President Jacob Zuma’s office – prior to the release of the report.
Essentially, he says, Mkhwebane made ‘errors’ in her investigation and report ‘but these should not be the basis of an adverse costs order against her’.
Mkhwebane was forced to admit that she had got it wrong when she ordered that the bank’s constitutional mandate be changed to no longer focus on protecting the value of the rand‚ as part of that report’s remedial action.
Arguing for the bank in the Constitutional Court, Advocate Kate Hofmeyr said that remedial action had resulted in the sale of R1.3bn in government bonds and caused a drop in the value of the rand. Should the court grant Mkhwebane leave to appeal that order, she said, the bank would ask it to find that Mkhwebane ‘abused her office’ in the way she conducted the probe.
‘The Public Protector failed to live up to the standards required of her office during her investigation. She conducted a partisan investigation which was aimed at undermining the Reserve Bank,’ the bank’s lawyers stated.
A ‘punitive personal costs’ would set a bad precedent for her office, Mkhwebane's lawyers told the court, according to a Fin24 report on the hearing. Ngalwana asked if it was reasonable to have the office of the Public Protector slapped with ‘punitive costs’ while carrying out its functions.
‘Can the country afford to have a head of a Chapter Nine institution operating under a threat of punitive legal costs ... is it reasonable, is it appropriate, is it desirable,’ he asked.
Ngalwana also argued that the order that the Public Protector personally pay 15% of the central bank's legal costs could set a negative precedent.
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