Public Protector Busisiwe Mkhwebane has raked in another punitive costs order against her. This time for an investigation conducted by her office into the Estina dairy farm scandal that showed “gross negligence”.
On Thursday, Judge Ronel Tolmay of the North Gauteng High Court, satisfied that both punitive and personal costs orders were warranted, handed down the following costs order against Mkhwebane (in all instances the costs are at attorney-client scale, which costs include the costs of two counsel):
- In her official capacity, she is ordered to pay 85% of the costs of the Democratic Council plus 85% of the costs of the Council for the Advancement of the South African Constitution.
- In her personal capacity, she is ordered to pay 7.5% of the costs of the Democratic Council plus 7.5% of the costs of the Council for the Advancement of the South African Constitution.
The court was concerned that the public protector made use of two sets of counsel, consisting of a senior and junior counsel in one matter, and a senior and two junior counsel in another matter. The public protector was however not paying the costs of the third junior counsel. The court was of the opinion that one set of counsel could have dealt with both matters. The court held that the public protector’s decision to brief two sets of counsel “shows a total disregard for taxpayers, who will have to foot the bill …”).
The court further held that “this flies in the face of her complaint about how financial constraints limit her ability to properly investigate matters”.
The courts, in applying the tests (for awarding personal costs) set out in Public Protector versus the South African Reserve Bank, Case CCT 107/18, opined that: “A reading of the judgment emphasises the tests that must be applied, the importance of holding public officials accountable, and the gravity of the decision that the court must make”.
The general test for the imposition of personal liability costs was articulated by Chief Justice Innes in Vermaak’s Executors v Vermaak’s Heirs (1909 TS 679, 691): “The conduct in connection with the litigation in question must have been male fide [‘in bad faith’], negligent or unreasonable.”
The court referred to the SA Reserve Bank judgment, in which it was held that the Constitution gave the court the power to impose personal costs on a public official, as the Constitution requires public officials to be accountable and observe heightened standards in litigation. The Reserve Bank judgment iterates:
“They must not mislead or obfuscate. They must do right and they must do it properly. They are required to be candid and place a full and fair account of the facts before a court.”
In the Reserve Bank case the court held that the public protector falls into the category of public litigant, and carries a higher duty under the Constitution to respect the law, to fulfil procedural requirements “and to tread respectfully when dealing with rights”.
In the minority judgment in the Reserve Bank case it was stated that “… the Public Protector should not be allowed to abuse her power or office with impunity”. It was agreed that a personal punitive costs order would be in warranted in appropriate circumstances.
The court further held that the Public Protector Act does not create immunity when the public protector acts in bad faith. The public protector is not untouchable, and equality of all is central to the Constitution. No one can claim total immunity “when they blatantly transgress their statutory and constitutional duties”.
A personal costs order can be granted against public officials where they show a gross disregard for their professional responsibilities (Pheko v Ekurhuleni Metropolitan Municipality) and where they act inappropriately and in an egregious manner (Reserve Bank, Black Sash II).
In this matter, the public protector was made aware that a personal and punitive costs order would be sought against her. The public protector not only opposed the costs order, she opposed the application on its merits as well.
The court held that the public protector’s failures and dereliction of duties in the Estina matter far outweighed what was set out in the Reserve Bank matter: “… her conduct in this matter is far worse, and more lamentable”. The court further stated: “In this instance her dereliction of duty impacted the rights of the poor and vulnerable in society, the very people for whom her office was created.”
Summing up, the public protector turned a blind eye, her conduct during the entire investigation constitutes gross negligence, and she failed completely to execute her constitutional duties.
“Her inability to comprehend and accept the inappropriateness of her proposed remedial action constitutes ineptness.”
The public protector should take note of what the court said: “The PP has immense power, but with that power comes great responsibility. If she fails [to execute her duties], as she did in this case, she must take full responsibility.”
It should be cold comfort for Mkhwebane that “the purpose of a personal costs order against a public official is a vindication of the Constitution”.