WTF is the public protector up to?
Surprise follows surprise, flying in the face of established law
On Monday, public protector Busisiwe Mkhwebane directed Parliament to reword the Constitution, assuming a power that, by all other interpretations, can be wielded only by a two-thirds majority of Parliament.
Though that was the most immediately eye-popping of Mkhwebane’s decisions, it was far from the only one in her report, in which she ordered the state to recover R1.125billion from Absa.
It may not even be the most controversial in the long run.
She also ordered the Special Investigating Unit (SIU) to start a process that would allow it to “investigate alleged misappropriated public funds given to various institutions as mentioned in the Ciex report”. And that is a long list.
The covert, private, foreign-intelligence organisation Ciex made extraordinary and unsubstantiated claims in its 1997 report and said money should be recovered from the Dutch Reformed Church, wine producer KWV and the governments of France, Germany and Switzerland.
If any such claims could be made, they would have legally expired after 15 years under the doctrine of prescription — the same doctrine under which Absa is likely to challenge Mkhwebane’s findings.
Absa is yet to file court papers but in its statement it said it had instructed its lawyers to “immediately prepare an application to the high court to have the report’s findings and its remedial actions … reviewed and set aside”.
The Reserve Bank said it would take urgent legal action after its lawyers “advised that the remedial action prescribed by the public protector falls outside her powers and is unlawful”.
Both Absa and the Reserve Bank are also expected to challenge her on jurisdiction. In her report, dealing with Reserve Bank loans in the 1980s, she says her office only has the discretion to investigate matters as far back as 1995, under the legal doctrine that laws should not be applied retrospectively.
Though Ciex reported on the loans in 1997, Mkhwebane doesn’t explain how that gives her the jurisdiction to reinvestigate the subject of that report and make new findings on it.
Absa and the Reserve Bank are also likely to challenge her on procedural fairness, natural justice and factual mistakes. Another is likely to be that her findings and directed remedial action are irrational.
In her 56-page report, Mkhwebane favours the findings of Ciex over those of a panel headed by Judge Dennis Davis and an investigation by then SIU head Willem Heath.
She concludes that when the Reserve Bank steps in to bail out a failing bank it benefits only “the financial sector market”. And ultimately she orders that the constitutional obligation of the Reserve Bank to prevent rampant inflation should be dropped.
Asked what research had led Mkhwebane to this conclusion, her office recommended that the Mail & Guardian do its own research.