Judgment reserved on Bankorp-CIEX matter

Public Protector Busisiwe Mkhwebane. (Pic: Netwerk24)
Public Protector Busisiwe Mkhwebane. (Pic: Netwerk24)

Pretoria - Judgment on the Bankorp-CIEX report has been reserved and the court will endeavour to deliver judgment early in 2018.

The matter was heard at the North Gauteng High Court over three days, before a full bench of judges including Judge Dawie Fourie, Judge Cynthia Pretorius and Judge Nomonde Mngqibisa-Thusi. It relates to a report Public Protector Busiswe 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 filed court applications to have the court review the report and set it aside. The SARB particularly sought a declaratory order that Mkhwebane abused her powers.

On Wednesday, Mkhwebane’s lawyer Paul Kennedy SC 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.

“What is particularly serious and concerning - it is a institute of state (SARB) itself which is required to be impartial - is reacting in a partisan, unjustified manner by attacking another important institute of state (Public Protector).”

He added that the SARB was the only applicant among the others, ABSA and the minister of finance, seeking the order, suggesting that it still has a bitter taste in its mouth following Mkhwebane’s remedial action to have its constitutional mandate changed. He emphasised that the declaratory order would also have consequences for the public’s confidence in the office of the Public Protector.

But on Thursday, the SARB’s counsel Advocate Kate Hofmeyr said there was no “animosity” by the SARB but that it rather was an action to vindicate the Constitution. “The declarator will vindicate the Constitution. It is a remedy that recognises that the office is bigger than the person who occupies it.

“On this occasion the requirements of the office to remain independent and impartial were breached. The consequence of the transgressions of the Constitution must be recognised and called for what they are, and in doing so vindicate the Constitution,” she argued.

This remedy will also ultimately vindicate the Public Protector’s office, added Hofmeyr.

"The office is built on principles and creates obligations for the person who occupies the office. When the obligations are not met, it must be recognised.” Hofmeyr suggested there were numerous occasions in which the office was in peril.

Hofmeyr contended that the SARB was not acting maliciously by seeking a declaratory order, as it had to act swiftly when its constitutional mandate came under attack. There was immediate, systemic financial harm resulting from the report.

“The Public Protector’s conduct warrants the declaratory order sought by the Reserve Bank, and the Constitution demands it be granted.”

ABSA's counsel Gilbert Marcus SC and representing the minister of finance Advocate Tembeka Ngcukaitobi also delivered closing replies during the course of the morning. Both tackled the procedural fairness which Mkhwebane failed to follow during her investigation. 

Closing the proceedings, Judge Pretorius thanked counsel for their arguments and said the court would try deliver judgment at the end of January or in early February.

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