ConCourt Judges Split On Mkhwebane’s Personal Cost Order

Attached is the Full Judgement

THE Constitutional Court ruled this morning that Public Protector Busisiwe Mkhwebane must pay 15% of the legals costs incurred by the South African Reserve Bank (Sarb). 

In a majority judgment penned by Khampepe J and Theron J (Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Mhlantla J and Petse AJ concurring), the Constitutional Court held that there was no sound basis to justify an interference with the High Court’s exercise of its true discretion to award personal and punitive costs against the Public Protector.  The Constitutional Court held that personal costs orders against public officials, like the Public Protector, whose bad faith conduct falls short of what is required of them, constitute an essential, constitutionally-infused mechanism to ensure that they act in good faith and in accordance with the law and the Constitution. 

The Constitutional Court held that the need to hold government to the duty of proper court process is sourced in the Constitution itself, and that personal costs orders are not granted against public officials who conduct themselves appropriately.  They are granted when public officials fall egregiously short of what is required of them.

The minority judgment, penned by Mogoeng CJ (Goliath AJ concurring), held that the High Court judgment should have been set aside because not only was no harm shown to exist but the basic personal costs’ definitional requirements of gross negligence and bad faith were not shown nor were they met.  The minority judgement held that it was ironic that the High Court found it extremely reprehensible that the Public Protector did not know what the High Court said she should have known when the High Court itself did not know what she should have known.

The minority judgment asserted that substantive justice requires that no litigant ought to be left exposed to undeserved ruination just because they did not expressly plead non‑compliance with basic legal requirements that have clearly not been complied with. Costs on an attorney and client scale are to be awarded where there is fraudulent, dishonest, vexatious conduct and conduct that amounts to an abuse of court process.  The minority judgment held that courts exist not to crush or destroy, but to teach, caution or punish constructively.  The order for costs against the Public Protector would, according to the minority, predictably ruin her financially and possibly shipwreck her occupation.

The minority judgement held that an order for personal costs against a representative litigant ought to bear a demonstrably clear correlation to the gravity of the wrongdoing that it is said to have occasioned.  The minority judgement further held that it cannot be seriousness or a mark of displeasure in a vacuum that is not supported by the danger that flows or could flow from the impugned conduct.

The minority judgment concluded that the High Court should not have mulcted the Public Protector, as a representative litigant, in punitive costs purely for opposing all three applications to the end.  The minority judgment held that in doing so, the High Court was influenced by wrong principles and a misdirection on the facts, resulting in a decision which could not reasonably have been made by a court properly directing itself to all relevant facts and principles. 

Full Concourt Judgement PP vs Sarb


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