The Mkhwebane judgment: time for Parliament to act
‘Parliament must now do its job.’ This is the response by the anonymous legal eagle ‘Professor Balthazar’ to Monday’s Constitutional Court ruling in Public Protector v South African Reserve Bank, which found that Public Protector Advocate Busisiwe Mkhwebane should be held personally liable for the costs of the SARB on a punitive scale.
‘This is a truly devastating finding, one that could surely justify an application for a strike off from the roll of advocates. If those who have been shouting about the need for constitutional compliance have not simply been engaged in an exercise of political opportunism, they – together with the balance of the country – must surely now say to Parliament – we cannot have a person in such an important office who misrepresents under oath and deliberately obfuscates critical facts. And given this judgment, there is now a likelihood of the present incumbent having to pay many more such punitive cost orders.’
In his examination of the judgment on the Daily Maverick site, ‘Professor Balthazar’ says Mkhwebane’s claim that punitive orders would weaken the constitutional office of the Public Protector, were clearly refuted by the judgment, which said: ‘Personal costs orders constitute an essential, constitutionally infused mechanism to ensure that the Public Protector acts in good faith and in accordance with the law and the Constitution.’
Furthermore, in EFF and Others v Speaker of the National Assembly and Another (the Nkandla judgment), the Constitutional Court ruled that the Public Protector’s reports can only be set aside for want of rationality – a ‘fairly low’ threshold to negotiate.
The author says it must follow that, ‘where such an office behaves with gross incompetence or worse, bad faith, an adverse cost order is an important instrument to ensure accountability’.
In this latest case, the majority concluded: ‘Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous ‘‘misstatements’’, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.’
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