High court rules against attorney, in favour of the Public Protector

The Gauteng Division of the High Court in Pretoria has dismissed, with costs, attorney Anthony Mostert’s application for leave to appeal the court’s earlier decision in which the court granted costs in favour of the Public Protector in a matter Mr. Mostert brought against the office on an urgent basis in 2019.

The Public Protector served Mr. Mostert with a notice in terms of section 7(9)(a) of the Public Protector Act in November 2018 during an investigation into alleged maladministration and abuse of power by former Executive Officer of the Financial Services Board (FSB), Adv. D.P. Tshidi.

The investigation followed a complaint by the President of the Economic Freedom Fighters, Hon. Julius Malema, MP, who alleged that, in his recommendation for the appointment of curators to administer FSB pensions funds, Adv. Tshidi had acted improperly in that he favoured Mr. Mostert.
He alleged that that, following his appointment as a curator, Mr. Mostert unduly paid himself in excess of R188 million in curator fees.
Hon. Malema further alleged that Adv. Tshidi abused his power in that he threatened and bullied various financial institutions into withdrawing civil action against Mr. Mostert, allegedly threatening to withdraw their operating licenses.

Mr. Mostert turned to the courts on an urgent basis in January 2019 in an attempt to interdict the Public Protector from releasing her findings on the matter. He sought this relief pending the application he intended to file in court to have the Public Protector’s decision to investigate conduct involving him reviewed and set aside on, among other grounds, that the office did not enjoy jurisdiction over him.

His application was unsuccessful, with the court granting costs against him in December 2019. He was ordered to foot the bill in his personal capacity, on the scale of attorney and client. On 6 March 2020, he sought to appeal that decision to a full court. The court heard his application for leave to appeal later that month.

Following its consideration of the facts and the applicable law, the court dismissed his application for leave to appeal, ordering him to pay the Public Protector’s and another party’s costs in his personal capacity.

“This court is of the opinion that there is no reasonable prospect that an appeal would be successful. Following thereon, this application for leave to appeal should be dismissed, with costs,” Acting Judge Brad Wanless ruled, in a judgment dated 13 May 2020 but issued to parties on Friday.