Mkhwebane 'a vehicle for abuse of state power'

Public protector Busisiwe Mkhwebane./
Public protector Busisiwe Mkhwebane./

The South African Reserve Bank has asked the high court to declare that Public Protector Busisiwe Mkhwebane abused her office and says this should come as no surprise to her.

It is the latest affidavit filed by the SARB in the ongoing court battle over Mkhwebane’s report into the bailout of Bankorp from 1985 to 1995‚ in which she found that Absa‚ which bought Bankorp in 1992‚ was liable to pay back R1.125-billion.

She also included a recommendation that the Constitution be amended with regard to the SARB’s core function‚ which is to protect the value of the Rand.

Her finding sparked a court challenge by Absa and SARB‚ the latter claiming that Mkhwebane is biased against it.

The replying affidavit by SARB general counsel advocate Johannes de Jager‚ which was filed in response to Mkhwebane’s answering affidavit‚ states that Mkhwebane broke virtually every rule “that applies to an organ of state when its decision is taken on review”.

He also states that her answering affidavit is an abuse of process. “It is an ex post facto [after the fact] justification of the report that relies on new reasons that were not the Public Protector's reasons when she published the report‚” De Jager writes.

He further claims her affidavit contains false statements‚ attaches documents that were not included in the record of proceedings and is not candid or forthright.

“As an organ of state‚ the Public Protector has heightened obligations in litigation. She is required to be frank and candid with the court and to explain her conduct in a transparent and accountable manner. Mkhwebane has not done so.”

“She has failed meaningfully to address the very serious accusations against her that she is biased against the Reserve Bank and pursued an ulterior purpose in her investigation.”

Mkhwebane’s failure to deal with the accusations has resulted in SARB asking the court to consider certain facts as common cause:

• The Public Protector met with the State Security Agency and the then-Minister of State Security on May 3 2017 and discussed‚ among other things‚ the vulnerability of the Reserve Bank

• The Public Protector had not one‚ but two meetings with the Presidency after receiving comments on her preliminary report and in circumstances where she had no other meetings with the parties most affected by the new remedial action in her report

• The Public Protector failed to disclose that she had had these meetings with the Presidency when she issued her report

• The Public Protector failed to keep a transcript of these meetings when it is routine practise within her office to record her interviews

• The Public Protector evidently discussed amending the Constitution with the Presidency to take away the Reserve Bank’s primary function – a topic that bore no relation to her investigation and which a court has already set aside as unconstitutional.

“The conduct is unbecoming of the important office that Mkhwebane occupies‚” De Jager’s affidavit states. “It amounts to abuse of her office.”

The Reserve Bank will also seek for the court to order Mkhwebane to pay costs individually and a “declaratory order from this Court that she has abused her office”.

“The request for a declaratory order should not come as a surprise to the Public Protector. She is required to be a check on the mis-use of state power‚ not a vehicle for it. She has failed in this investigation to be impartial and independent.”

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