Bernadette Wicks
Senior court reporter
5 minute read
23 Mar 2020
6:53 pm

Mkhwebane loses with costs in court again, as move to remove her delayed by Covid-19

Bernadette Wicks

Public protector Busisiwe Mkhwebane on Monday lost another court case, and again was ordered to pay 15% of the legal costs in the case.

Public Protector Advocate Busisiwe Mkhwebane can be seen during the release of her reports at the Public Protector's offices in Pretoria, 28 January 2020. Picture: Jacques Nelles

The SA Revenue Service (Sars) successfully opposed her bid to gain access to the personal income tax records of people she wants to investigate.

Mkhwebane had attempted to subpoena former president Jacob Zuma’s tax records after he was accused of receiving suspicious payments from Royal Security – owned by Zuma-linked businessman Roy Moodley – during his first presidential term.

High court judge Peter Mabuse ruled in favour of Sars commissioner Edward Kieswetter, who had applied for an order making it clear that Mkhwebane’s subpoena powers could not extend to confidential taxpayer information.

Mabuse, sitting in the High Court in Pretoria, found her powers were subject to the law and therefore did not “trump the provisions of the Tax Administration Act”.

He said in handing down judgment: “She is not at large to upstage the constitution. We know of no law that gives her unfettered powers to ignore the constitution and national law.

“One of the requirements she had to satisfy for her appointment as the public protector was that she had to be an advocate.

“There was a reason for this requirement, and that reason was that the expectations were high that she would understand the law and that she would apply it in her daily conduct.

“She would not adopt the devil-may-care attitude in the face of the law, advice and genuine legal opinion”.

Earlier this month, Sars’ counsel advocate Jeremy Gauntlett argued before Mabuse that the Tax Administration Act only provided for its officials to release confidential taxpayer information to police or prosecutors – or in the event of there being a high court order directing them to do so.

The public protector’s legal team maintained that organs of state had a constitutional duty to assist her in the course of her work and Zuma, himself, filed a letter giving permission to have his personal information handed over.

But Mabuse pointed to “the fundamental issue of taxpayer confidentiality which the commissioner is by law compelled to uphold for the benefit of all the taxpayers”. He also dismissed a counterapplication launched by Mkhwebane for her to be granted taxpayer information.

In finding her liable for 15% of the costs, the judge said that as a public litigant, Mkhwebane was expected to “always act with a high degree of perfection” and that as a public official, she could be made to dig into her own pocket in instances where she “exhibits gross disregard for her personal responsibilities; where she acts inappropriately and in an egregious manner; or if she is guilty of bad faith or gross negligence in conducting litigation”.

Further, the judge said that in this case, there were valid reasons for a personal costs order against Mkhwebane.

Removal looms

Time now appears to be running out for the beleaguered public protector, as parliamentary speaker Thandi Modise still intends to process a motion for her removal despite the postponement of parliament’s business due to the coronavirus.

Parliament suspended its activities, including meetings by committee, in line with the stringent regulations announced by President Cyril Ramaphosa to combat the spread of Covid-19.

On Monday parliament announced that the matter of the public protector would be dealt with once parliament resumed its work.

“In view of the suspension of the business of parliament until further notice as a precautionary measure against the outbreak of the Covid-19 pandemic, the Speaker of the National Assembly will process the motion tabled by the Chief Whip of the Democratic Alliance for the removal of the Public Protector from office when the assembly resumes its business,” said a statement from parliament.

It said the parties participating in the application by the public protector for an interim interdict of the parliamentary process had agreed to have the matter postponed until further notice. The agreement had been made an order of the Western Cape High Court.

Recently Modise accepted a fresh DA-sponsored motion for Mkhwebane’s removal after the party withdrew its initial motion against Mkhwebane submitted in December 2019. The DA’s chief whip, Natasha Mazzone, who initiated the motion, said that since then, new evidence had come to light that strengthened the DA’s case.

“The DA believes that it is of the utmost importance and in the interests of justice and the rule of law that the position of Public Protector is filled by a person who is indisputably fit and proper,” Mazzone said.

She said in the DA’s view, Mkhwebane was guilty of misconduct and/or incompetence on several charges including the South African Reserve Bank and Estina Dairy Farm investigations.

In February the DA submitted a fresh motion which Mazzone said was meant to “put the best possible case before the independent panel that will evaluate whether or not grounds for removal exist”.

She said they were happy that the process continued without delay.

Parliament was expected to nominate an independent panel to look into whether there was a case against Mkhwebane before she was investigated and a final decision taken whether to remove her.

“The DA will put forward candidates for the independent panel forthwith. We hope that South Africans may soon be rid of a seemingly politically captured public protector, who has not done her high office, or the South Africans she is meant to serve, any justice,” Mazzone said.

In addition to the SARB/Absa case she lost, Mkhwebane recently lost her matter against President Cyril Ramaphosa pertaining to the alleged bribery by Bosasa and alleged funding of the CR17 campaign. She was made to pay personal costs on both matters.


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