ConCourt upholds cost order against Mkhwebane, rules she was not honest in Absa investigation
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The Constitutional Court on Monday upheld the personal costs order against Public Protector Busisiwe Mkhwebane.
The court agreed with the North Gauteng High Court that her entire Absa/Bankorp investigation was flawed, and that Mkhwebane was not honest during her investigation.
The apex court dismissed the South African Reserve Bank's application for a declaratory order to find that Mkhwebane has abused her office while she undertook the investigation.
The public protector, in a report published on June 19 2017, had tasked the Special Investigating Unit (SIU) with recovering R1.125-billion in "misappropriated public funds", describing the funds as an "illegal gift" given to Bankorp by the South African Reserve Bank in the 1980s. As Bankorp and other banks were later subsumed into Absa, Mkhwebane ruled that the funds be recovered from Absa.
Following the publication of her report, the central bank, the minister of finance, Absa and Treasury instituted review applications set aside her directive that the SIU recover funds from Absa. These applications were later consolidated.
The North Gauteng High Court in Pretoria set aside Mkhwebane's findings in February 2018, citing a "reasonable apprehension of bias" in her work. Mkhwebane was also ordered to personally repay 15% of the South African Reserve Bank’s legal costs, while the office of the Public Protector was ordered to pay the remaining 85%.
Mkhwebane's applications for leave to appeal the judgment in the High Court and the Supreme Court of Appeal were refused.
The public protector then sought leave to appeal the section of the ruling relating to her personal liability for the legal costs in the Constitutional Court. The case was heard in November 2018.
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