[ad_1]
Public protector Busisiwe Mkhwebane during a press conference on December 12, 2019 in Pretoria, South Africa. (Photo: Gallo Images / Daily News / Raymond Morare)
The Constitutional Court has examined four personal costs orders against the public protector Busisiwe Mkhwebane and has only confirmed one. On Tuesday, the court warned that granting such orders without merit would weaken Mkhwebane’s office and damage democracy. In the ruling, the court also dismissed his appeal to the citation tax records.
The Constitutional Court has warned the country’s highest courts to be wary of issuing personal cost orders against Public Protector Busisiwe Mkhwebane without merit, as it struck down another such order on Tuesday.
Court overturned a North Gauteng Superior Court order that said she must personally pay 15% of the legal fees of SARS Commissioner Edward Kieswetter in his failed attempt to convince the court that he had the power to subpoena confidential tax records.
The case stems from a subpoena issued by Mkhwebane to former Acting SARS Commissioner Mark Kingon to provide former President Jacob Zuma’s tax records. She was investigating allegations that Zuma had received Royal Security payments from businessman Roy Moodley.
The Constitutional Court dismissed his appeal on the subpoena matter, saying that Mkhwebane had not shown that the matter was urgent and did not prove that he had a right to access the tax records.
Mkhwebane argued that the Constitution gave him the right to access tax records, but the court found that he had not challenged the constitutionality of Section 69 (1) of the Tax Administration Act, which prohibits SARS from disclosing confidential taxpayer information except in certain exceptional circumstances.
ConCourt- Public Protector vs SARS
“That being the case, she cannot just reject the section and its prohibition,” Judge Mbuyiseli Madlanga said upon reading the unanimous sentence.
However, the judge criticized the higher court’s decision to issue a personal costs order against Mkhwebane.
By putting her to personally pay 15% of Kieswetter’s legal costs, in his March 2020 ruling, Judge Peter Mabuse described the Public Protector’s conduct as dishonest, inexcusable and reckless.
Madlanga dismissed that decision, saying that “there was simply no basis for the higher court award of costs.”
He said that Mkhwebane’s belief that he could cite tax records was wrong, but it was genuinely upheld.
The higher court said it acted in bad faith when it claimed that its office could not afford to contribute to a legal opinion commissioned by SARS, but commissioned and paid for another opinion when it found that it could not cite taxpayer information. That opinion agreed that it could cite SARS records.
He explained that the commissioning of the two opinions fell on different years and, therefore, his office could afford the second but not the first.
“The high court’s conclusion in bad faith in this regard is therefore a leap of logic and yet another detour,” Madlanga said.
Mkhwebane has lost a number of high-profile legal battles, and with respect to the two legal opinions, the high court found that he had a “proclivity” to operate outside the law and ignore advice.
Madlanga said Tuesday: “How that becomes a proclivity is beyond me. It is also surprising that the higher court holds that the public protector acted outside the law by seeking a second opinion when she had every right to request it. “
The Constitutional Court also dismissed the higher court’s claim that Mkhwebane is expected to act “with a high degree of perfection”.
Madlanga said: “That would make public service extremely dangerous from a financial point of view. Therefore, the higher court held the Public Protector to an unduly high and legally non-existent standard. “
He said there was a tendency to seek personal expense orders in the cases against Mkhwebane.
He referred to a case “more worrying” than the Constitutional Court, decided in May 2020, between the Public Protector, the EFF and the Minister of Public Enterprises, Pravin Gordhan, where the court tipped over an order for personal expenses.
The Gauteng High Court issued another scathing judgment against Mkhwebane last week regarding his investigation into Gordhan and the “rogue unit” of SARS, ordering him to personally pay 15% of Gordhan’s legal costs.
Madlanga said the Constitutional Court had considered four personal cost orders awarded against Mkhwebane and only confirmed one.
“As I have just demonstrated in the present case, the high court reached conclusions in which it used particular epithets and nouns, which, at first glance, gave a clear impression that the Public Protector was a safe candidate for a personal costs order. . But it turned out that there wasn’t a shred of evidence to support those conclusions. Therefore, they could not stand up to scrutiny. “
He said the Constitutional Court was not warning lower courts to apply personal cost orders sparingly, but to apply the law correctly and issue such orders when there is evidence of an official who has displayed egregious conduct or gross disregard for their professional duties.
The ruling warned courts to be cautious and “not fall into the trap” of assuming that Mkhwebane is “fair play” for automatic personal cost orders.
“Unjustified cost orders against the Public Protector in his personal capacity in work-related litigation can have a chilling and damaging effect on the exercise of his powers,” Madlanga said.
“It goes without saying that, as a judiciary, we should not be guilty of contributing to the weakening of that office. You weaken it, you weaken our constitutional democracy. Its power, its appeal to those whom it must serve, its effectiveness to comply with the constitutional mandate, must be preserved for posterity, ”the ruling reads. DM
