Judgment reserved on SARB-Public Protector matter

Pretoria – Judgment has been reserved in the Reserve Bank's application to have the Public Protector's remedial action to change its constitutional mandate set aside. 

The matter was heard at the North Gauteng High Court on Tuesday. Judge John Murphy said he would consider the arguments presented and deliver a judgment before August 18, the day the South African Reserve Bank (SARB) and Parliament are expected to respond to Public Protector Busisiwe Mkhwebane with an action plan.  

The SARB opposed Mkhwebane’s order, which was part of a report released in June based on an investigation into the Bankorp bailout during the apartheid era. Mkhwebane ordered the bank’s mandate to be changed to ensure the socio-economic well-being of citizens and to achieve socio-economic transformation.

However, the bank contested this on several grounds, among these that it falls outside the Public Protector’s powers and that the remedial action breached the separation of powers because it encroached on Parliament’s exclusive domain. It was also not related to the subject of the Public Protector’s investigation.

The SARB pointed out that the remedial action was irrational and the process was unfair, as it was not given an opportunity to comment on the constitutional amendment.

Reserve Bank governor Lesetja Kganyago previously said that the bank’s primary objective is to protect the value of the currency, in the interest of balanced and sustainable growth.

“I know of no central bank that does not have this mandate. These institutions are best equipped to carry out this function, and stripping them of this mandate would raise the question as to where the responsibility for price stability should lie,” he said at the bank’s annual general meeting on Friday.

During the hearing, David Unterhalter SC, who represented the SARB, explained that relief was being sought from the courts as the Constitutional Court has previously ruled that the remedial powers of the Public Protector are binding. The Reserve Bank will have to obey the remedial action unless the court rules that it is unlawful.

Unterhalter further argued that the Public Protector misunderstood the role of the Reserve Bank. “The Public Protector has simply failed to appreciate the true role of the Reserve Bank and why it plays a critical role in maintaining financial stability and why it is critical to the economic welfare of South Africans,” he said.

Arguments were also presented by Absa's counsel Gilbert Marcus SC, who emphasised the economic consequences of the remedial action and its threat of a credit downgrade which would impact poor South Africans most.  

Parliament's counsel Ishmael Semenya also was present and argued that the Public Protector stepped beyond her scope of power. "The Public Protector may not prescribe to Parliament how to exercise its powers."

SUBSCRIBE FOR FREE UPDATE: Get Fin24's top morning business news and opinions in your inbox.

Read Fin24's top stories trending on Twitter:

Brent Crude
All Share
Top 40
Financial 15
Industrial 25
Resource 10
All JSE data delayed by at least 15 minutes morningstar logo
Company Snapshot
Voting Booth
Do you think it was a good idea for the government to approach the IMF for a $4.3 billion loan to fight Covid-19?
Please select an option Oops! Something went wrong, please try again later.
Yes. We need the money.
11% - 884 votes
It depends on how the funds are used.
74% - 5835 votes
No. We should have gotten the loan elsewhere.
15% - 1172 votes