The Constitutional Court, in a majority judgment, upheld the High Court of South Afica’s order that Public Prosecutor (PP) Busisiwe Mkhwebane must pay the SA Reserve Bank’s costs on a punitive attorney-client scale.
The high court reasoned that these costs were warranted for circumstances that include:
- Not fully understanding her constitutional duty to be impartial and perform her functions without fear, favour or prejudice;
- Her failure to disclose her meetings with the presidency in her final report;
- Pretending that she had acted on the advice of economic experts in compiling her final report (dated June 19, 2017).
The PP’s final report “caused severe harm to the South African economy. This included a significant depreciation in the rand and a sell-off by non-resident investors of R1.3 billion worth of South African government bonds”. The Reserve Bank had to launch an urgent action to set aside the remedial action insofar as it related to the amendment of section 224 of the Constitution.
The PP “must be impartial and exercise her powers and perform her functions without fear, favour or prejudice”, and provide effective and accountable government for the country.
None of her meetings with the presidency were disclosed in her final report. In normal times, this would be bad enough. But these are abnormal times; coming to grips with the depth and extent of state capture is a work in progress.
The Constitutional Court found that the PP’s explanations in regard to the meetings with the presidency were highly contradictory – on the one hand “they had nothing to do with the substance” of her report, on the other, her handwritten notes set out “what was discussed at the meeting”. The handwritten notes indicate that the PP and the presidency “had discussed amending the constitution to strip the Reserve Bank of its central function”.
It is for this reason the high court found that she had acted in “bad faith and in a grossly unreasonable manner”.
The dissenting judgment, written by chief justice Mogoeng Mogoeng, with acting justice Patricia Goliath concurring, makes for essential reading. It not only contains gems of insight, there are also a couple of red flags.
The dissenting decision weighed up the need to have a PP who will confront perceived or alleged wrongdoing, and not be fearful of incurring personal costs, against the requirement to guard against the abuse of state power, gross negligence and bad faith. The overriding concern is that the Office of the Public Protector is vital if the state is to have the “undiluted capacity to investigate and expose unethical conduct or improprieties”.
The dissenting judgment did not find that the PP was “grossly negligent” nor that she acted in “bad faith”, although she didn’t receive five stars for her conduct either.
Acting in a grossly negligent manner or in bad faith is important in that it is relevant in terms of whether she should be charged for 15% legal costs at the punitively high attorney-client scale – which is sure to bankrupt her.
(The ConCourt judgment stated that the personal costs order of the high court “must stand”, but made no order as to costs “in this court”.)
But this does not mean that her conduct was something to be proud of either. Nor how one would expect a public official to conduct themselves, particularly the public protector, who should be the guardian of social justice fighting for our protection from evil miscreants.
The dissenting judgment held that:
- The PP “got the law completely wrong” by acting as though she could direct Parliament to amend the Constitution. But she got it so wrong that no one should have taken her seriously – “it was a known or predictable non-starter in legal circles”. Thus, no damage was, or could have been caused. The PPs “ill-advised or over-zealous proposal” never posed any real threat.
- The PP handled some of the issues relating to her investigation and reporting in an incongruous manner.
- Did the PP “hope to get away with a surreptitious connivance to harm the unsuspecting other”? In short, no.
- Consulting the presidency cannot be seen to be sinister or lacking impartiality, for the reason that the presidency has a “material interest in matters concerning the possible disregard for the law or impropriety” of an institution such as the Reserve Bank.
- The PP lied about consulting two economists, but was this done in bad faith? “…who was sought to be deceived or disadvantaged, how and for what conceivable purpose?”
- Legal costs on an attorney client-scale should be granted against a litigant “whose claim is frivolous, vexatious or manifestly inappropriate”. It is not clear which of these requirements the high court relied on, if any. The dissident judgment held that the punitive costs order against the PP in her personal capacity was not just and equitable – “Instead, the institution would, bear all the costs on the ordinary scale”.
- The high court found that the PP “does not fully understand her constitutional duty” and thus dealt with her harshly. (In a country where some in high office do not appear to understand their constitutional duty, there is no reason for us, the public, to quibble with this.)
But what I found particularly concerning is that:
“The brightly highlighted apparent corruption, fraud, illegality or impropriety involving the R1.125 billion bailout of Bankorp by the Reserve Bank has virtually disappeared into thin air”.
The PP’s errors swamped any merits in the investigation initiated by her predecessor Thuli Madonsela.
Now perhaps this was a crusade against the ‘innocent and squeaky-clean’ Reserve Bank”. But, handled with more professionalism and skill, may it not have turned into a ground-breaking investigation? We will never know, and that is the pity.
With the rampant level of corruption in this country, we require public officials with the requisite skills and the ability to go head to head with powerful institutions and corrupt persons without losing track of their impartiality or independence, without resorting to apparently secretive meetings with a puppet master, and following due legal process at all times.
No one is untouchable. Unless the one attempting to poke them is a newbie with little understanding of the principles that govern their office.