High court slams Mkhwebane’s ‘unacceptable’ handling of allegations against Absa
The High Court in Pretoria yesterday expressed its displeasure in the way Public Protector Busisiwe Mkhwebane had conducted her investigation into the Absa-Bankorp matter.
It ordered her to personally pay 15% of the costs in the application by the Reserve Bank.
The Reserve Bank‚ Absa‚ the minister of finance and the Treasury were successful in their application to review and set aside the remedial action of the public protector’s report on the lifeboat by Absa, released in June last year.
In the report the public protector recommended to the Special Investigating Unit (SIU) it reopen and amend a presidential proclamation to recover misappropriated public funds “unlawfully given to Absa Bank in the amount of R1.125-billion”.
In setting aside this remedial action‚ the court said the SIU Act did not make provision for the SIU to approach the president to reopen and amend a proclamation.
“The SIU is not authorised by statute to do so and neither can the public protector instruct such a unit to perform such a function,” the court said in a judgment written by Judge Cynthia Pretorius‚ with two other judges concurring.
The court noted that both Absa and the Reserve Bank contended that the public protector had failed to conduct a fair and unbiased investigation.
They said after publication of her provisional report in January last year‚ the public protector met the Presidency and the State Security Agency without affording the banks a similar opportunity.
The court said Mkhwebane did not disclose in her report that she had meetings with the Presidency on April 25 and June 7 last year, only admitting to the April meeting in the answering affidavit and remaining silent on the June meeting.
“Generally speaking‚ a court will not grant an order for costs to be paid personally where a litigant is acting in a representative capacity.”
But the court said the public protector had demonstrated that she had exceeded the bounds of this indemnification. “It is necessary to show our displeasure with the unacceptable way in which she conducted her investigation as well as her persistence to oppose all three applications to the end.
It said this was a case where a simple punitive costs order against her in an official capacity would not be appropriate.
“The public protector‚ in her official capacity‚ should be ordered to pay 85% of the costs of the application by the Reserve Bank on an attorney and client‚ and the balance of 15% should be paid by the public protector in her personal capacity‚” Pretorius said.
After scoring the legal victory yesterday, Absa thanked its customers and staff.
The ruling related to an investigation into apartheidera loans granted to Bankorp‚ which Absa purchased in the 1990s.
Absa was the source of protests and scorn after it was accused of failing to repay the loan to the Reserve Bank. Absa customers and employees were often caught in the fray.
Last July the bank secured an interdict in the High Court in Johannesburg‚ prohibiting the Black First Land First (BLF) movement from intimidating its customers on its premises.
In a statement following the ruling Absa said: “We welcome the decision of the court. It confirms our position and submissions to the Court that Absa does not owe any money to the government because it paid fair value for Bankorp.
“The Court found that the public protector ‘did not conduct herself in a manner which should be expected from a person occupying the Office of the Public Protector’.” This latest scathing court judgment against Mkhwebane was more proof that she should be axed‚ the DA said yesterday.
DA shadow minister of justice Glynnis Breytenbach said this was not the first time Mkhwebane had wasted precious resources on frivolous court applications.
Breytenbach cited two other instances where Mkhwebane had wastefully incurred legal costs. These included Mkhwebane backing down from her proposal to amend the constitution in order to expand the mandate of the Reserve Bank.
“By all accounts‚ Mkhwebane is utterly ineffectual and dangerously out of touch with her mandate as public protector.
“The DA has always maintained that she is not suitable to head up the Office of the Public Protector‚ as a crucial institution in the fight against injustice and corruption‚” Breytenbach said.
She said the judgment was also an indictment of the ANC members of the portfolio committee on justice‚ who refused to consider the DA’s request to remove her.
In their response, the Economic Freedom Fighters called on Mkhwebane to leave her office.
The party said if Mkhwebane refused to step down‚ the EFF would initiate a parliamentary process to remove her in terms of section 194 of the constitution.