Re­me­dial ac­tion rested on ma­te­rial er­rors – Ramos


PUB­LIC Pro­tec­tor Busi Mkhwe­bane, still nurs­ing a bloody nose fol­low­ing a tus­sle with the cen­tral bank, faces an­other back­lash, this time from Absa.

The bank­ing gi­ant has filed pa­pers to chal­lenge her re­port im­pli­cat­ing it in a dodgy aparthei­dera fi­nan­cial bailout.

In pa­pers filed yes­ter­day, Absa ap­proached the high court to set aside Mkhwe­bane’s “re­me­dial ac­tion” that or­ders Absa to pay back R1.125 bil­lion.

Absa chief ex­ec­u­tive Maria Ramos said the re­me­dial ac­tion rested on ma­te­rial er­rors of fact and was im­posed with­out pro­ce­dural fair­ness, among oth­ers.

“The main re­lief is di­rected against the pub­lic pro­tec­tor’s re­me­dial ac­tion re­quir­ing the SIU (Spe­cial In­ves­ti­gat­ing Unit) to ap­proach the pres­i­dent to re­open and amend Procla­ma­tion R47 of 1998 in or­der to re­cover from Absa funds which were al­legedly mis­ap­pro­pri­ated,” Ramos said.

The ap­pli­ca­tion was made days after Mkhwe­bane had made a U-turn not to op­pose an­other ap­pli­ca­tion brought by the SA Re­serve Bank to set aside and re­view her con­tro­ver­sial de­ci­sion to in­struct the gov­ern­ment to change the man­date of the cen­tral bank – which would have meant chang­ing the con­sti­tu­tion.

Mkhwe­bane in­structed the SIU to re­cover the R1.125bn “lifeboat gift” from Absa. Mkhwe­bane was widely slated for her de­ci­sion, although she was en­thu­si­as­ti­cally sup­ported by the Black First Land First or­gan­i­sa­tion and the ANC Youth League.

Ramos said that when Absa ac­quired Bankorp in 1992, it was on con­di­tion that it re­paid the fi­nan­cial as­sis­tance it had re­ceived from the SARB, adding that the amount was paid in full, in­clud­ing the in­ter­est due to the cen­tral bank.

“Absa had no fur­ther obli­ga­tion in re­la­tion to the fi­nan­cial as­sis­tance,” Ramos said in court pa­pers.

She in­sisted that Absa ac­quired Bankorp for a fair value and was not li­able for the lat­ter’s debt to the SARB.

Ramos added that the SIU had in 1998 found no com­pelling rea­son to pro­ceed with lit­i­ga­tion to re­cover the money and that the panel of ex­perts ap­pointed by the then gover­nor of the SARB deemed at­tempts to re­cover the money as un­war­ranted.

She also said the so-called CIEX Re­port, which Mkhwe­bane re­lied on in her in­ves­ti­ga­tion, did not pro­vide for ev­i­dence or ad­vance any le­gal ba­sis for the re­cov­ery of the money.

“The real ben­e­fi­cia­ries of the Bankorp as­sis­tance were San­lam pol­icy hold­ers and pen­sion fund ben­e­fi­cia­ries,” she pointed out.

Ramos main­tained that Mkhwe­bane’s re­me­dial ac­tion rested upon ma­te­rial er­rors of fact as Mkhwe­bane failed to ap­pre­ci­ate the con­se­quences of the man­ner in which the trans­ac­tion was struc­tured and that Absa had paid for the “lifeboat” when it ac­quired Bankorp.

She said the re­me­dial ac­tion was im­posed with­out pro­ce­dural fair­ness, as Absa, de­spite re­quests, had never been shown crit­i­cal doc­u­ments which formed the ba­sis of the find­ings.

“Not even the com­plaint was made avail­able to Absa,” she said.

Ramos added that debt al­legedly due to the SARB by Absa oc­curred more than 20 years ago. “No ba­sis for re­cov­ery of any debt, as­sum­ing it to be due, is set out in the fi­nal re­port,” she said.

“The pub­lic pro­tec­tor does not have ju­ris­dic­tion to in­ves­ti­gate mat­ters which oc­curred be­fore the com­ing into op­er­a­tion of the Pub­lic Pro­tec­tor Act or the es­tab­lish­ment of the Of­fice of the Pub­lic Pro­tec­tor,” Ramos added.

The Of­fice of the Pub­lic Pro­tec­tor came into be­ing in 1995 and the debt dated back to the mid-1980s.

Ramos also said the re­me­dial ac­tion stripped the power of the SIU and Pres­i­dent Ja­cob Zuma.

Her spokesper­son, Cleopa­tra Mosana, would not com­ment last night.


PRES­SURE MOUNT­ING: Absa is tak­ing Pub­lic Pro­tec­tor ad­vo­cate Bu­sisiwe Mkhwe­bane to court.

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