Reserve Bank to argue abuse of office by public protector
The Constitutional Court has given the Reserve Bank the right to argue that public protector Busisiwe Mkhwebane “abused her office” with her disastrous investigation of the Bank, in a case that will almost certainly affect Mkhwebane’s battle to remain in her position.
“The public protector failed to live up to the standards required of her office during her investigation. She conducted a partisan investigation, which was aimed at undermining the Reserve Bank,” the Bank’s lawyers state in documents before the Constitutional Court.
They say that Mkhwebane “also fell egregiously short of her duties” during the litigation that ultimately saw her office’s report on the apartheid-era bailout, given by the central bank to Bankorp, being overturned.
Bankorp was later taken over by Absa.
On November 27, Mkhwebane’s legal team will ask SA’s highest court to reverse the estimated R900,000 legal costs bill she was ordered to pay personally by the Pretoria High Court.
The court found Mkhwebane did not fully understand her constitutional duties as public protector when she conducted her Bankorp investigation.
Mkhwebane was forced to admit that she had got it wrong when she ordered that the Bank’s constitutional mandate be changed to no longer focus on protecting the value of the rand‚ as part of that report’s remedial action.
The court expressed disquiet over Mkhwebane’s meetings with the presidency and the State Security Agency (SSA) over her Bankorp investigation‚ certain parts of which she did not initially disclose.
It also emerged in court proceedings that a note recorded during Mkhwebane’s meeting with the SSA stated — in reference to the Reserve Bank — “How are they vulnerable?”
The high court expressed concern that Mkhwebane had met the SSA and the presidency less than two weeks before she released her far-reaching Bankorp report‚ without disclosing this to the Bank or Absa.
“Having regard to all these considerations‚ we are of the view that a reasonable‚ objective and informed person‚ taking into account all these facts‚ would reasonably have an apprehension that the public protector would not have brought an impartial mind to bear on the issues before her‚” the court ruled. “We therefore conclude that it has been proven that the public protector is reasonably suspected of bias.”
Mkhwebane now wants the Constitutional Court to rule that the costs order given against her “impacts adversely and directly on the exercise by the public protector‚ a Chapter Nine institution‚ of her constitutional power‚ obligations and functions without fear‚ favour or prejudice”. She argues that the Constitutional Court must “set aside” the high court’s findings “that there is a reasonable apprehension that I was biased” and “that I do not fully understand my constitutional duty...”.
But the Reserve Bank is adamant that these findings are legally justified.
“These failings are not innocent errors or mistakes. They form a consistent pattern of obfuscation and avoidance. Both these orders are designed to vindicate the constitution when its duties have been defied in such a flagrant manner.”
DA MP John Steenhuisen, who has repeatedly called for Mkhwebane to be removed, has told Business Day that parliament has “been dragging its feet” in determining her fitness to hold office.
“Parliament needs to finalise this inquiry as soon as possible, or again face accusations of dereliction of duty.”