Mkhwebane vs Reserve Bank: No sign of life at the ConCourt

2019-07-10 06:03
Public Protector advocate Busisiwe Mkhwebane during the release of her report Nelson Mandela's funeral funds inquiry.  (Phill Magakoe/ The Times/Gallo Images/Getty Images, file)

Public Protector advocate Busisiwe Mkhwebane during the release of her report Nelson Mandela's funeral funds inquiry. (Phill Magakoe/ The Times/Gallo Images/Getty Images, file)

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There are no signs the Constitutional Court is preparing to deliver judgment in the case between Public Protector Busisiwe Mkhwebane and the South African Reserve Bank (SARB) in the Absa-Bankorp lifeboat matter. Arguments were heard in November last year, almost eight months ago.

The spokesperson in the office of Chief Justice Mogoeng Mogoeng, Nathi Mncube, told News24 he does not have any notification on the case.

"It's not a government decision, the judges only share information among themselves. It would be improper for the judges to share information regarding a decision of theirs with anyone but themselves," he said. 

Mkhwebane appealed a personal costs order against her, while the SARB, in turn, has asked for a declaratory order, stating that she abused her power in the case.

The Gauteng High Court in Pretoria earlier delivered a scathing judgment, setting aside Mkhwebane's findings against Absa and the SARB.

'Eagerly awaiting judgment'

The SARB's lawyer, Corlett Manaka, said he had not heard anything from the court yet.

"We are awaiting notification from the court as to when it will be handing down judgment, but nothing has come out as yet.

"We are eagerly awaiting the judgment," Manaka added.

With the judgment still to be delivered, Motsoeneng-Bill Attorneys - the law firm representing the Public Protector in the case - told News24 it had withdrawn from the case before it went to the Constitutional Court. 

The spokesperson for the Public Protector, Oupa Segalwe, said he was unable to explain the reason for this, adding "attorney/client confidentiality requires that we do not divulge such information to a third party".

He added the previous legal team had since been replaced and the Public Protector had not heard anything with regards to the judgment from the court. 

In February 2018, the High Court set aside the Public Protector's 2017 report into the Absa/SARB/Bankorp, in which she called on Absa to repay a R1.125bn "lifeboat" given to Bankorp by the SARB in the 1990s. 

The report also instructed that action should be taken to amend the Constitution to change the SARB's mandate.

Both the SARB and Absa filed court applications in the High Court to have the report reviewed and set aside, specifically the change in the SARB's mandate, which the Public Protector did not oppose.


Judge John Murphy found the report's recommendation to change the SARB's mandate irrational and unrelated to the evidence in the investigation.

Upon setting aside certain sections of the report, the High Court ruled there was reason to believe that the Public Protector was biased in her investigation.

It also ruled "that she did not fully understand her constitutional duty to be impartial and perform her functions without fear, favour or prejudice".

The High Court ordered Mkhwebane to personally repay 15% of SARB's legal costs, while the office of the Public Protector should repay the rest.

After it dismissed Mkhwebane's application for leave to appeal, she approached the Constitutional Court in November 2018, where her lawyers argued that "punitive personal costs" against the Public Protector would set a bad precedent, News24 reported.

The SARB is also seeking leave to cross-appeal the High Court judgment, which dismissed its application to declare the Public Protector abused her office during her investigation.

The SARB further argued that she had fallen short of her duties and was biased in her investigation. The judgment could have a significant impact on Mkhwebane's ability to hold office.

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Read more on:    public protector  |  sarb  |  absa  |  busisiwe mkhewebane  |  judiciary

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