Public Protector report on ABSA bailout set aside

Pretoria -  Public Protector Busisiwe Mkhwebane's Bankorp-CIEX report, where ABSA was ordered to pay R1.125bn, was set aside on Friday by the North Gauteng High Court. 

In a devastating ruling to the protector, the court set aside her report as well as the remedial action she recommended and ordered her to personally pay some of her opponents' legal costs.  

In handing down judgment, Justice Cynthia Pretorius ordered Mkhwebane to pay 15% of the South African Reserve Bank's (SARB's) costs in her personal capacity. The rest of the 85% will be paid by her office. Her office also has to pay the costs of ABSA on an attorney and client scale, including the costs of three counsel.

The case saw Mkhwebane and the SARB face off in court. 

The Bankorp-CIEX matter was heard at the North Gauteng High Court in December over three days before a full bench of judges including Pretorius, Judge Nomonde Mngqibisa-Thusi and Judge Dawie Fourie. 

It relates to the report Mkhwebane released in June, where her findings called for ABSA to repay R1.125bn for a lifeboat provided to Bankorp by the Reserve Bank during the apartheid era. Both the SARB and ABSA had filed court applications to have the court review the report and set it aside. The SARB in particular sought a declaratory order that Mkhwebane abused her powers.

During the court proceedings Gilbert Marcus SC for ABSA argued that Mkhwebane failed to adhere to procedural fairness. Mkhwebane had refused ABSA’s request meet with her prior to the publication of the final report. He also said that she met with Black First Land First, which was a strong opponent of ABSA and took the stance that ABSA should repay the debt.

In return Mkhwebane’s lawyer Paul Kennedy SC had argued that if the court granted the declaratory order, it would prepare the ground for the Public Protector to lose her job.

“The court is being used to prepare the ground for the removal of the person who occupies the office of the Public Protector,” Kennedy said. He appealed to the court not to be part of the strategy or approach of the SARB.

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