THIS case is the first of its kind.
Never before has the Head of an Institution that has been established in terms of Chapter 9 of the Constitution of the Republic of South Africa, 1996, “to strengthen constitutional democracy in the Republic”, been ordered by any Court to pay personally, and from her own pocket, the costs of litigation initiated by another institution also established in terms of the Constitution primarily “to protect the value of the currency”, in circumstances where the latter institution prevailed in the setting aside a decision of that Chapter 9 Institution.
In a majority decision, the Constitutional Court of South Africa confirmed a decision of the Pretoria High Court in ordering the Public Protector personally and on a punitive scale to pay 15% of the costs of the South African central bank in a case where the central bank had successfully challenged the Public Protector’s decision in which she had directed that it recover a debt of over a Billion Rand of public money that it had granted to a bank before the dawn of constitutional democracy in South Africa, and which debt had been found by two judges, acting independently of each other in two separate investigations, to have been unlawful.
The High Court decision for this far-reaching order was anchored in the finding that the Public Protector had persisted in opposing the SA Reserve Bank’s application (and two others seeking to set aside her remedial action or ruling) to the end and in the manner in which the Public Protector allegedly conducted the litigation in the high court.
The majority in the Constitutional Court seems to found its decision on what it terms generally “falsehoods” and “bad faith” by the Public Protector in the high court. It said
“The Public Protector’s conduct in the High Court warranted a de bonis propriis (personal) costs order against her because she acted in bad faith and in a grossly unreasonable manner.”
Like the high court, the majority refused to entertain the SA Reserve Bank’s cross-appeal to declare that the Public Protector had abused her powers in her investigation of the Bankorp lifeboat loan. It took the view that the Public Protector had not been afforded an opportunity to deal with this issue in the high court.