Public protector Busisiwe Mkhwebane has scoffed at a personal costs order issued against her by the Constitutional Court, insisting she should have the status of a judge.
This, she told the Sunday Times this week, is because judges are not held personally liable for "mere legal errors", or made to pay for wrongful judgments.
"Judges are guaranteed decisional independence, which means they can't be made to pay personal costs for decisions or judgments they make, no matter how egregious.
"The public protector is guaranteed similar independence, something the Constitutional Court overlooked," she said in a thinly veiled swipe at the court, which upheld the personal costs order against her two weeks ago in the matter involving her report on the Absa/Bankorp bailout.
The ruling could cost her as much as R1m.
Mkhwebane's assertions come in a week in which she finds herself entangled in an increasingly hostile, and personal, battle with President Cyril Ramaphosa.
She faces a looming inquiry in parliament into her fitness for the post, and calls by civil society organisations for her to reconsider her position in light of a string of damning rulings that have not only shredded her judgments and grasp of the law, but raised questions about her honesty and even her political motives.
She claims she has been the subject of a campaign to discredit her, and likened her situation to that of the late struggle veteran Winnie Madikizela-Mandela.
This week Mkhwebane lashed out at three top civil society organisations that, with the DA, have asked parliament to probe her fitness to hold office, calling them "a band of donor-funded civil society organisations who masquerade as pro-constitutionalism outfits when in fact they are only pro the elite, rich and powerful".
It has been a tough two weeks for the embattled head of the chapter 9 institution.
On Monday, she suffered another devastating blow in the high court in Pretoria. Judge Sulet Potterill slammed the remedial action contained in her report that found public enterprises minister Pravin Gordhan guilty of maladministration for his role in the establishment of an intelligence-gathering unit at the South African Revenue Service as "vague, contradictory and nonsensical".
The previous Monday, the Constitutional Court dismissed her appeal against a high court judgment that ordered that she personally pay 15% of the costs in the matter involving the Reserve Bank and Bankorp.
In a written response to questions from the Sunday Times, Mkhwebane said the ruling upholding a personal costs order against her would weaken the office of the public protector, which performs quasi-judicial functions and whose incumbent occupies a position similar to that of a judge.
"It would appear there is a serious oversight that judges' decisional independence is guaranteed by shielding them from punitive or disciplinary actions for 'mere legal errors' while the public protector must run the risk of punitive costs orders or bankruptcy each time she makes a decision or orders remedial actions which result in judicial review applications," she said.
"At the appropriate time, these issues will need to be considered by our judiciary as part of our ongoing efforts to strengthen our vibrant constitutional democracy."
Mkhwebane said the costs finding is dangerous as it will embolden corrupt politicians to run to the courts in the hope that she will be made to pay part of their costs if they successfully overturn her reports.
"It serves as a terrorem [legal threat] weapon available to the corrupt - or those guilty of maladministration - they can threaten a judicial review each time and threaten personal costs orders against the public protector. No judge would ever serve in our judiciary if they were placed in a similar predicament," she said.
Mkhwebane vowed to resist what she calls "threats and intimidation" in the course of her work, even if it means she must personally pay the legal costs of those who successfully challenge her reports.
She said she will not cower in the face of such threats, including one from Ramaphosa's lawyers, of further personal costs against her if she insists on defending the legal challenge to her remedial action against him in her report on Bosasa's donation to his ANC presidential campaign, released three weeks ago.
On the face of it, it appears to be a ploy to stop me from making adverse findings against the powerful, well-resourced politicians and other bureaucrats
— Busisiwe Mkhwebane
"On the face of it, it appears to be a ploy to stop me from making adverse findings against the powerful, well-resourced politicians and other bureaucrats, but it will never work. I am committed to doing my work with dedication and vigour and such threats will not stop me."
Mkhwebane said it is "unfortunate" that the office of the president, which is constitutionally required to protect chapter 9 institutions, is making threats to bankrupt her personally.
Mkhwebane is engaged in an escalating war of words with Ramaphosa over a number of matters, including the donation to his CR17 ANC presidential campaign. She found that Ramaphosa "deliberately misled" parliament and violated the executive ethics code in relation to a R500,000 donation from Bosasa boss Gavin Watson.
In his application to review her report at the high court in Pretoria, Ramaphosa questions Mkhwebane's understanding of the law and charges that she has no jurisdiction to investigate donations made to his ANC campaign. "These donations do not implicate the state, public administration or public affairs in any matter whatsoever," he says in court papers.
This week, Mkhwebane said Ramaphosa and those questioning her understanding of the law do not use the same "abusive language" when judges err.
"For judges it is accepted that the appeal process is there to correct any errors they might have made - their competence or legal understanding is never questioned even when the appeal court finds gross errors on their part," she said.
"In my case there is the presumption that I am not entitled to the same decisional independence or allowed to err without being labelled incompetent. Unfortunately, that is the abusive language that even Minister [Pravin] Gordhan and President Ramaphosa have adopted."
Asked if she is aware of a public campaign to raise funds to help her pay the legal costs in the Bankorp matter, Mkhwebane said she is "touched by the gesture and the spirit of Ubuntu and generosity displayed by members of the public".
She has referred the matter to her legal team for advice on whether it would be appropriate to accept donations.
Speaking about how she can afford the legal bill, Mkhwebane said: "I will have to find a way. I can enter into an arrangement on how to settle the bill as I do not have that kind of money lying around."
Wits law professor Ntombizozuko Dyani-Mhango said if the public protector wants to be accorded the same status as a judge, she should not defend her reports when they are challenged in court.
If she was really a judge, she wouldn't defend her rulings in court, she would abide by the judgments [against her]
— Wits law professor Ntombizozuko Dyani-Mhango
"Judges do not defend their judgments, yet she defends hers. If she was really a judge, she wouldn't defend her rulings in court, she would abide by the judgments [against her]," said Dyani-Mhango.
Mkhwebane described as "absurd" accusations that she is being used by an anti-Ramaphosa faction of the ANC.
In her responses to the Sunday Times, Mkhwebane also launched a blistering attack on those who have called into question her fitness to hold office. She singled out the DA and civil society organisations that have written to parliament to ask that it initiate an inquiry into her fitness to hold office.
"You will never see [these organisations] taking up the cause of the poor," she charged.
"For instance, I named and shamed a number of state organs that ignore my remedial actions to the detriment of ordinary people. None of these organisations have taken such organs of state to task for their conduct, yet when certain powerful people are being held to account, these organisations are their first line of defence," she said.
Corruption Watch, the Council for the Advancement of the South African Constitution and the Helen Suzman Foundation have each separately written to parliament requesting it to expedite an inquiry into her fitness to hold office.
This week, the Organised Crime and Corruption Reporting Project reported that Mkhwebane was flagged by global banking giant HSBC for financial links to the Gupta family.
According to the report, the bank flagged a payment of more than $5,000 into Mkhwebane's bank account at First National Bank in June 2014, at the height of the Gupta family's influence over the Zuma government.
Mkhwebane has vehemently denied that this happened.
The Mail & Guardian reported on Friday that her account at FNB was under investigation by the bank for possible exchange control violations related to the movement of money between countries without seeking permission from the bank.
Mkhwebane told the Sunday Times this week that she no longer has offshore accounts, after she closed her HSBC account in 2014 when her tenure as a diplomat in China ended. She said she had three bank accounts in SA. Mkhwebane said she was not aware of a probe by FNB.
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