Mkhwebane is gunning for Absa

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Public Protector Busisiwe Mkhwebane insists that Absa benefited from the bailout of Bankorp in the 1980s, and that the 2002 expert panel led by Judge Dennis Davis simply got it wrong.

She also denies that there is anything dodgy about her meetings with the president, the State Security Agency and Black First Land First before issuing her controversial report in June.

At the same time, it seems that her meeting with the presidency was what informed her to make her recommendation.

“On March 29 2017, I received an email from the presidency in which the president called for a meeting.
I agreed to have a meeting, which took place on April 25 2017,” she said in an affidavit lodged with the Pretoria High Court.

“From the discussion during our meeting I became concerned that my draft remedial action to direct the president to establish a judicial commission may face similar difficulties as currently faced in the State of Capture report.

“This is because there is already a legal determination pending, in the review application of the State of Capture report, concerning whether my office can direct the president to establish a commission of inquiry.”

As a result, the remedial action she imposed was that the Special Investigating Unit (SIU) approach the president to reopen a proclamation from 1998 to recover R1.125 billion in allegedly misappropriated public funds.

On Friday afternoon, Mkhwebane finally provided her response to the review application by Absa, the SA Reserve Bank and National Treasury to set aside the remedial action recommended in her contentious Bankorp report.

In her 100-page affidavit, she claims that Absa does, in fact, owe the South African people money, but that her order directing the SIU to recover that money does not harm Absa.

Mkhwebane denies that her report and its remedial action adversely affect “a substantive right” of Absa, the Reserve Bank or Treasury.

“The president still has to consider and apply himself to the request, which is yet to be made by the SIU. It does not follow, on the ordinary reading of the remedial action, that the president will necessarily grant the request for the reopening of the investigation,” she said.

All the SIU is being made to do is “request” that the president reopen the case, according to Mkhwebane.

Throughout her affidavit she makes the argument that her remedial actions do not really involve Absa at all – even while insisting that the bank owes money.

Mkhwebane denies that Absa even has the right to oppose her order.

It has never been disputed that the bailout given to Bankorp, which was later acquired by Absa, was unlawful and overgenerous.

The Davis panel of 2002, however, found that Absa paid fair value for Bankorp to its shareholder, which was then Sanlam.

The benefit went to Sanlam, which had not been demutualised at that point, Davis found.

This meant that the money went to all the policyholders and could not be practically recovered.

Mkhwebane denies this.

“I deny that Absa paid fair value,” she said.

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