Protector may have to cough up almost R1m
It transpired that the public protector does not fully understand her duty to perform her functions without fear, favour or prejudice
PUBLIC Protector Busisiwe Mkhwebane could soon be R900 000 poorer, following a judgment that has left the door open for a further order that she abused her office in her handling of the Absa-Bankorp matter.
In the judgment handed down on Friday – which set aside Mkhwebane’s finding that R1.125-billion be recovered from Absa for an apartheid-era bailout granted to Bankorp, which Absa later bought – a full bench of the Pretoria High Court found Mkhwebane should, in her personal capacity, pay a portion of the Reserve Bank’s legal costs.
“It is necessary to show our displeasure with the unacceptable way in which she conducted her investigation,” Judge Cynthia Pretorius said in the judgment.
“In the matter before us, it transpired that the public protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice.”
Mkhwebane would be asked to “express an opinion on that opinion about her” when she appeared before parliament’s portfolio committee on justice and correctional services on Thursday, committee chairman Mathole Motshekga said.
Mkhwebane was originally called to appear before the committee following the release of her report into the Vrede dairy project, which was allegedly used to channel millions of rands to the Gupta family.
The DA, which is taking that report on review, said it displayed no effort to probe the true corruption at the heart of the Vrede scam.
In the Absa-Bankorp matter, Pretorius ordered that Mkhwebane pay 15% of the Reserve Bank’s legal costs from her own pocket.
The remaining 85% must be paid by her office, which must also pay Absa’s legal fees.
“The costs on a punitive scale will certainly be in the millions of rands, probably around R5-million to R6-million for each party,” an attorney with extensive litigation experience, who declined to be named, said.
These figures suggest that Mkhwebane might be R750 000 to R900 000 out of pocket.
The public protector said in a statement on her website that she had noted “with shock” the judgment and would decide upon appropriate action.
Three high court judges heard the matter, which relates to an apartheid-era loan granted to Bankorp. An earlier investigation headed by Judge Dennis Davis found that, while the loan was unlawful, Absa paid fair value for Bankorp and received no benefit from the loan.
The judgment upheld the respondents’ assertions that Mkhwebane’s findings paid no regard to the evidence before her, that the remedial action prescribed was unlawful and that she conducted her investigation in a procedurally unfair manner.
Mkhwebane had held secret meetings with the Presidency and the State Security Agency at which the Reserve Bank’s vulnerabilities were discussed. She had also met Black First Land First, despite denying Absa a meeting.
“The process was not impartial and therefore there is a reasonable apprehension that the public protector was biased against Absa and the Reserve Bank,” Pretorius said.
While the judgment stopped short of granting a declaratory order sought by the Reserve Bank that Mkhwebane had abused her office, on grounds that Mkhwebane was not given a sufficient chance to oppose it, it paved the way for one to be brought.
“This court will not issue a declaratory order, although it will be possible to apply to court for such an order.”
The DA has called for Mkhwebane’s removal.
The DA’s Glynnis Breytenbach said yesterday the party had written to National Assembly Speaker Baleka Mbete requesting that she expedite the process to remove Mkhwebane in terms of section 194 of the constitution. She said this section stated that the public protector may be removed from office on:
ý The grounds of misconduct‚ incapacity or incompetence;
ý A finding to that effect by a committee of the National Assembly; and
ý The adoption by the assembly of a resolution calling for that person’s removal from office.
“The speaker must now see to it that the proceedings to have the public protector removed commence swiftly as Mkhwebane has repeatedly demonstrated that she is not fit to serve as public protector.
“The decision by the high court was a damning indictment on her fitness to hold office.
“She clearly does not understand her role as public protector and misconstrued the powers of her office when‚ in the same report‚ she proposed that the Reserve Bank’s mandate be amended‚” Breytenbach said.
“Parliament can no longer sit idly by while this important office is rendered useless by the incumbent.” – Additional reporting by Claudi Mailovich