Public protector loses court action against Reserve Bank

THE REMEDIAL action called for by Public Protector Busisiwe Mkhwebane in her report into the alleged failure to recover misappropriated funds in the Absa/Bankorp debacle was set aside by the Gaueng High Court, Pretoria.

The obligation placed on the chairperson of the portfolio committee on justice and correctional services and on the SA Reserve Bank to submit an action plan to the public protector in relation to the remedial action was also set aside.

Judge John Murphy slapped Mkhwebane’s office with the legal costs.

The SARB earlier turned to court for an urgent order setting aside the remedial action called for by Mkhwebane.

The report followed an investigation and a preliminary report by the public protector into a complaint about the alleged failure by government in 1999 to implement the recommendation of a covert UK-based asset agency, CIEX, suggesting that government recover monies paid by the Reserve Bank to Bankorp.

The funds were provided to Bankorp between 1985 and 1995 by the Reserve Bank acting as a lender.

In her report, Mkhwebane called on the chairperson of the portfolio committee to take certain steps to amend the constitution to alter the mandate of the bank.

Judge Murphy said in his judgment that the public protector’s explanation and “begrudging” concession of unconstitutionality offer no defence to the charges of illegality, irrationality and procedural unfairness. “It is disconcerting that she seems impervious to the criticism, or disinclined to address it.

“She risks the charge of hypocrisy and incompetence if she does not hold herself to an equal or higher standard than that to which she holds those subject to her writ.

“She will do well to reflect more deeply on her conduct of this investigation and the criticism of her by the governor of the Reserve Bank.”