The Constitutional Court said on Monday that public protector Busisiwe Mkhwebane’s conduct in the Bankorp-Absa bailout matter fell far short of the high standards required of her office.
The majority of the Constitutional Court dismissed Mkhwebane’s application to set aside a Pretoria high court judgment last year which ordered that she pay 15% of the costs in that case from her own pocket.
In the majority judgment penned by justices Sisi Khampepe and Leona Theron, the court said the constitution required public officials to be accountable and observe heightened standards in litigation.
“They must not mislead or obfuscate. They must do right and they must do it properly.”
“Bad faith”, “not being candid”, “misrepresenting, under oath” and “not honest” were some of the phrases used in the judgment when referring to the conduct of the public protector.
They said the personal costs order against a public official was to vindicate the constitution.
They said these orders were required to protect the Constitution because officials who flouted their constitutional obligations must be held to account.
“And when their defiance of their constitutional obligations is egregious, it is they who should pay the costs of the litigation brought against them, and not the taxpayers.
“This court has repeatedly affirmed the principle that a public official who acts in a representative capacity may be ordered to pay costs out of their own pockets in certain circumstances.”
They said there was no merit in the public protector’s contention that the independence of her office and proper performance of her functions demand that she should be exempted from the threat of being ordered to pay personal costs orders.
“On the contrary, 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,” they said.
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BY: ERNEST MABUZA
SOURCE: TMG DIGITAL