Astonishing and embarrassing

The size and scope of the public protector’s blunder in the investigation of the South African Reserve Bank lifeboat to Bankorp and the CIEX report is mind-boggling. Within a couple of weeks of releasing her first report of major significance, Busisiwe Mkhwebane has had to admit that she was completely wrong in law and that it made no sense that the Constitution would confer on the public protector the authority to rewrite the Constitution itself. As a result, she has withdrawn her proposals to revise the mandate of the Reserve Bank and has even offered to pay costs.

On top of this embarrassment, more will soon follow. While Mkhwebane has suggested that these remedial provisions be set aside, she still intends to defend the rest of her report, in particular, that Absa should pay back the money that went into the Bankorp rescue.

Absa, Minister of Finance Malusi Gigaba and the Reserve Bank are all challenging the factual basis for this conclusion.

Mkhwebane is going to find it hard to defend her findings. After she published her draft report in December, the Treasury and the Bank made detailed submissions on the Bankorp lifeboat, how it came about and the mechanics of how it worked. The submissions, which are now attached to the court papers, make mincemeat of Mkhwebane’s draft, pointing out numerous errors of fact and interpretation.

There is no indication in the final report that these submissions were even read by Mkhwebane, let alone taken into consideration as they should have been. Once a court begins to scrutinise the facts of the matter, it is predictable that Mkhwebane will squirm in further embarrassment. There is no shortage of documentation to pore over. Two judges have investigated the matter, compiling far more detailed and useful reports than the flimsy CIEX report (compiled by a former British spy turned bounty hunter) on which Mkhwebane insists there should have been action.

There are also other problems over which she has skimmed. The Bankorp bail-out is by now prescribed and the time for prosecution long since passed. The events also took place before the establishment of the office of the public protector. These two issues will have to be considered by the court when the review process gets under way.

From a political point of view, the whole saga raises important questions. The most important is why did she do it?

The sudden introduction of a discussion over the mandate of the Reserve Bank into the report when the evidence or the investigation had not touched on this at all is wildly irrational. As it was not part of the original complaint, it is hard not to conclude that it was done for political reasons.

As it happens to be a position popularised by fringe groups and maverick academics, it looks very much like Mkhwebane was lobbied. While it seems that she chose not to consider the submissions made on her draft, between her draft and final report, she did two additional interviews: one with Black First Land First, a lobby group known for its radical posturing, attacks on the Treasury and defence of the Gupta family; the second with Stephen Goodson, a former Reserve Bank director whose views on central banking mirror the maverick ideas that appear in her final report. Goodson is also associated with Black First Land First and has some strange proclivities such as Holocaust denialism.

That Mkhwebane allowed herself to be lobbied is nothing less than an abuse of her power. If there is one thing we have learned about the office of the public protector, it is that it is enormously powerful. An individual who holds the office must of necessity be of impeccable integrity.

In six short months, Mkhwebane has shown that she cannot be trusted to wield that power.

IT IS HARD NOT TO CONCLUDE THAT IT WAS DONE FOR POLITICAL REASONS