Public protector should get on with her real work, says legal expert

IT WAS her first big ruling, and Public Protector Busisiwe Mkhwebane overstepped her boundaries and brought her office into disrepute.

This is the view of constitutional expert Professor Shadrack Gutto following the news that Mkhwebane has backed down from defending a South African Reserve Bank application opposing her report on the bank. In her report, Mkhwebane ordered Parliament to amend the constitution in order to change the mandate of the bank.

She also ruled that a R1.125 billion loan, which she termed a “lifeboat gift”, should be recovered from Absa by the Special Investigating Unit.

Gutto said: “What she has done now is probably a wise thing. She was in a hurry to profile her office during her early days and she made an error. Now that she is really not proceeding with the application, it will be difficult for her office to pursue Absa. She is standing in muddy waters. She should rather focus on her mandate. She has a lot to do.”

He added that the public protector would have to leave it to the court to decide on the legal costs so far as Absa was concerned.

Mkhwebane yesterday agreed to pay the legal costs of the Sarb, but seemed determined to put up a fight against the awarding of legal costs to Absa, which had applied to be a co-applicant in the matter.

Her remedial action was harshly criticised across the board. But there were others, notably the Black First, Land First organisation and the ANC Youth League that had backed her enthusiastically. But it was the big guns who initiated the court action: Reserve Bank governor Lesetja Kganyago lodged the application against the report, and was supported by Absa, Finance Minister Malusi Gigaba and parliamentary Speaker Baleka Mbete.

While Mkhwebane, in her papers, accepted she had overstepped her mark, she went to great lengths to explain why she decided on this particular remedial action and on her decision to oppose the application in the first place.

She said she filed the notice to oppose Sarb’s application on June 30 “with the intention of taking legal advice on whether to oppose the application or abide by the decision of the court”.

She argued that the Absa funds could have been used to benefit the “broader South African society, as opposed to a handful of shareholders of Bankorp and/or Absa bank”.