Public Protector Busisiwe Mkhwebane’s legal representative has expressed extreme displeasure with the litany of litigants seeking personal and punitive costs orders against her just because other courts have granted them.
Mkhwebane’s senior counsel, advocate Dali Mpofu, was making arguments at the Constitutional Court on Thursday in her appeal of the North Gauteng High Court ruling setting aside her subpoena of the SA Revenue Service (Sars) to provide her with former president Jacob Zuma’s tax returns.
The matter follows a 2018 complaint lodged by former DA leader Mmusi Maimane after The President’s Keeper by investigative journalist Jacques Pauw was published.
In the explosive book, Pauw details claims that Zuma received R1m per month from Royal Security, a company owned by ANC supporter Roy Moodley.
”What we are saying is this, and we are saying it with all the convictions we can muster, as you saw in that sentence I just read, it says basically please court just give the order because it’s been given before,” Mpofu said.
Mpofu had read Sars commissioner Edward Kieswetter’s heads of arguments by senior counsel Jeremy Gauntlett and Frank Pelser.
In their submission, Gauntlett and Pelser had told the apex court that the manner in which Mkhwebane litigated, she failed to remedy her conduct in litigation on which the country’s highest court adversely commented on the matter between her and the SA Reserve Bank (SARB).
They argued that “as this court confirmed, where organs of state (and more specifically the Public Protector herself) litigates in such fashion, courts can and should make an appropriate, punitive de bonis propriis (out of one’s own pocket) costs order”.
In March, North Gauteng High Court Judge Peter Mabuse set aside Mkhwebane’s subpoena of Zuma’s tax returns and ordered her to pay 15% of the costs in the matter from her own pocket.
But Mpofu told the court that the order was asked for on a flimsy basis that “just because somebody else did it down the road”.
”What I am saying is this, and I am saying this as somebody who has done these cases, it’s easier, let’s put it that way, because of these adverse costs orders and personal costs orders, it’s easier for applicants, before we even come to the courts, to do a job like I just said, to just put at the end of the affidavit, thrown in four or five sentences, who knows, we might just get personal costs orders,” he said.
In Mkhwebane’s written submissions, Mpofu and Tholoana Motloenya had told the apex court that only this court is in a position to address the growing and worrying tendency for some members of the judiciary unjustifiably and almost instinctively to find against Mkhwebane and seemingly allowing themselves to be unduly influenced by other clearly distinguishable or inapplicable decisions of this court such as the SARB matter.
In the SARB matter, Mkhwebane investigated the R1.125-billion apartheid-era lifeboat the central bank granted to Bankorp, one of the financial institutions that amalgamated to establish banking giant Absa.
She was also ordered to pay 15% of the costs personally because she was found to have acted in bad faith and in a grossly unreasonable manner