Public Protector reacts to the Constitutional Court judgement

Public Protector Adv. Busisiwe Mkhwebane has noted Friday’s Constitutional Court decision to set aside a personal cost order made against her by the North Gauteng High Court in July 2019 when it granted the Minister of Public Enterprises an interim interdict to stay the implementation of her remedial action in the so-called “Rogue Unit” matter.

The remedial action in question included that the President should take note of the findings in the matter and take appropriate disciplinary action against the Minister, and called on the Speaker of the National Assembly to refer the findings against the Minister to the Joint Committee on Ethics and Members’ Interests for consideration.

Ad. Mkhwebane found that the Minister deliberately misled the National Assembly in failing to disclose a meeting with a member of the Gupta family and that he established an intelligence unit in violation of relevant prescripts during his tenure as the Commissioner of the South African Revenue Service.

In overturning the High Court’s decision that Adv. Mkhwebane should personally pay the Minister’s costs, the apex court held that the High Court “materially” misdirected itself and failed to advance reasons justifying the decision. It added that there was no factual basis for the High Court to make a personal cost order against her.

Adv. Mkhwebane has consistently argued that personal cost orders interfere with her duty to perform her functions independently and without fear, favour or prejudice.
Ordinarily, the Public Protector would not oppose applications for interim interdicts against the implementation of her remedial action. In actual fact, it was her who advised the President and the Minister to obtain the interim interdict in the matter concerned.

The decisions to oppose the application for the interdict in the High Court and to apply to the Constitutional Court for leave to appeal the High Court ruling were largely informed by the inflammatory language used and baseless allegations made by the Minister in his court papers, and the personal cost order, respectively.

Adv. Mkhwebane, therefore, commends the Constitutional Court for affirming the significance of the role her office plays in the country’s constitutional democracy. While stating that the Public Protector is not immune to criticism, the Court cautioned against comments that could be perceived as undermining the office and its constitutional powers.

In this respect, the Court stated that: “Similarly, the Public Protector is a constitutional servant, like the courts, and her Office should be afforded respect. It is an office of fundamental constitutional significance and her powers are not only desirable but also necessary for the purpose, inter alia, of holding public office bearers accountable. Her role in our constitutional democracy cannot be gainsaid. While she may be criticised, these comments should not be perceived as undermining her Office and its constitutional powers. To mount a bad faith attack on her Office would surely work to undermine the constitutional project of the Republic.”

Adv. Mkhwebane further wishes to remind everybody concerned that her findings and remedial action in the matter in question stand until such time they are set aside by the court. The High Court has yet to hear the review application brought by the Minister and other parties.

End.