Pro­tec­tor hurts the rand

Her Absa re­port hits the cur­rency Moots change to the con­sti­tu­tion

The Star Early Edition - - FRONT PAGE - STAFF RE­PORTERS

PUB­LIC Pro­tec­tor Bu­sisiwe Mkhwe­bane yes­ter­day ex­posed her­self to fur­ther pub­lic scru­tiny and caused the rand to fall 1.5% af­ter her as­ser­tion that she would ap­proach Par­lia­ment to re­vise a sec­tion of the con­sti­tu­tion.

Mkhwe­bane was widely crit­i­cised for her lack of un­der­stand­ing of the con­sti­tu­tion and the lim­i­ta­tions it put on her pow­ers, with con­sti­tu­tional ex­perts say­ing she does not even have the le­gal pow­ers to rec­om­mend the amend­ment of the con­sti­tu­tion.

While re­leas­ing find­ings of her CIEX re­port yes­ter­day, Mkhwe­bane said she would ap­proach Par­lia­ment to re­vise a por­tion of the con­sti­tu­tion that deals with the role of the Re­serve Bank, af­ter in­ves­ti­ga­tions found that Absa was li­able to pay back R1.125 bil­lion for ben­e­fit­ing in a deal re­gard­ing the ac­qui­si­tion of Bankorp.

Mkhwe­bane rec­om­mended that the Spe­cial In­ves­ti­gat­ing Unit re­cover the money from the bank with the help of the Re­serve Bank.

The CIEX had con­ducted the in­ves­ti­ga­tion in 1997, fol­low­ing the re­quest of the South African Se­cret Ser­vice, into banks that were given “lifeboats” by the Re­serve Bank.

Con­sti­tu­tional law ex­pert Pierre de Vos said yes­ter­day that the “pub­lic pro­tec­tor was not con­sti­tu­tion­ally au­tho­rised to or­der a demo­crat­i­cally elected Par­lia­ment to amend the con­sti­tu­tion”.

Phep­helaphi Dube of the Cen­tre for Con­sti­tu­tional Rights in Cape Town con­curred, say­ing it was “al­most ir­ra­tional for the pub­lic pro­tec­tor to rec­om­mend that the con­sti­tu­tion be reme­died for of­fences which took place be­fore 1994”.

“It doesn’t make sense. First of all, we need to look at who has the pow­ers to change the law. Only Par­lia­ment or the min­is­ter. It will mean that the Na­tional Assem­bly has to agree by a two-thirds ma­jor­ity. She (Mkhwe­bane) doesn’t have that power.

Dube said fur­ther that the re­me­dial ac­tion Mkhwe­bane was call­ing for was de­bat­able, and that there could be a ju­di­cial over­reach.

“It could mean far-reach­ing amend­ments to the con­sti­tu­tion, as there has to be par­tic­i­pa­tion by the elec­torate.

“I think I am not alone in ex­press­ing the view that there has been a pos­si­ble over­reach by the pub­lic pro­tec­tor,” said Dube, speak­ing on 702 last night.

Also shar­ing the same sen­ti­ment was Pro­fes­sor Shadrack Gutto, another con­sti­tu­tional ex­pert, who said that by rec­om­mend­ing the amend­ment of the con­sti­tu­tion, Mkhwe­bane was over­reach­ing the pow­ers of her of­fice.

“She (Mkhwe­bane) can’t rec­om­mend broad changes in how banks and other fi­nan­cial in­sti­tu­tions op­er­ate.

We have a fi­nan­cial om­bud’s of­fice, so where does the pub­lic pro­tec­tor come in? She should have rather rec­om­mended to op­er­ate to­gether with fi­nan­cial om­buds to see where we go.”

He added: “I don’t think we need to amend the con­sti­tu­tion at all. She is not giv­ing rea­sons why there should be changes.

“What we need is pro­gres­sive in­ter­pre­ta­tion of the con­sti­tu­tion to achieve cer­tain ob­jec­tives. The prob­lem is more about in­ter­pre­ta­tion and ap­pli­ca­tion than ac­tual pro­vi­sions in the con­sti­tu­tion.”

Absa were adamant that they have done noth­ing wrong. In a state­ment yes­ter­day, the bank said they had met all their obli­ga­tions re­gard­ing the loan of­fered by the Re­serve Bank in 1995.

“It is our firm po­si­tion that there is no obli­ga­tion to pay any­thing to the govern­ment,” the bank said, stat­ing they were will­ing to go to court to get a rul­ing on the mat­ter.

Af­ter a leaked pro­vi­sional re­port in Jan­uary, the bank said they had done noth­ing wrong and de­manded to see the doc­u­ments Mkhwe­bane used to reach her con­clu­sion.

The bank said the pro­vi­sional find­ings were “legally and fac­tu­ally flawed”.

The SACP, which has been vo­cal on the is­sue since it sur­faced, said its stance on the mat­ter had not changed.

“In Jan­uary, we called on Absa to pay back the full amount, plus in­ter­est. We still hold the same view. Money must be paid back with­out fear of favour,” said the party’s spokesper­son Alex Mashilo.

He warned that Mkhwe­bane’s find­ings should not stop ef­forts to tar­get oth­ers “in­volved in loot­ing”.

“All loot­ers of re­sources must be held ac­count­able. Even those that loot un­der the guise of rad­i­cal eco­nomic trans­for­ma­tion. We must clear cor­rup­tion on all fronts,” he said.

The ANC Youth League ex­pressed de­light in the find­ings, say­ing they would mon­i­tor the process and ex­ert pres­sure where needed.

The Umkhonto we Sizwe Mil­i­tary Vet­er­ans, who have called for Absa to be held to ac­count , said the bank should re­pay the money so it can be used for ed­u­ca­tion.

Bu­sisiwe Mkhwe­bane

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