Scathing judgment may put Mkhwebane's job in jeopardy

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

Pretoria - Friday’s scathing judgment in the Bankorp-CIEX court case could lay the foundation for removing Public Protector Busisiwe Mkhwebane from her position, on the basis that she abused her office. 

Mkhwebane already received a stinging judgment against her in August last year, after Judge John Murphy labelled her “impervious” and "disingenuous".

Friday's judgment was handed down by Judge Cynthia Pretorius in the the North Gauteng High Court , after a full bench of judges consisting of Pretorius, Judge Nomonde Mngqibisa-Thusi and Judge Dawie Fourie, heard the Bankorp-CIEX review application in early December.

The judgment described Mkhwebane as biased and without proper comprehension of her constitutional duty. It said she did not conduct herself in a manner expected from a person occupying the office of the Public Protector.

The court set aside Mkhwebane's report and the finding that ABSA was liable to pay R1.25bn to the government. It ordered her to personally pay some of her opponents' legal costs.  

Mkhwebane “did not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law and that a higher standard is expected from her”, the judgment stated. “She failed to explain her actions adequately.”

This could possibly lay the foundation of a new application, seeking an order that Mkhwebane has abused her office.

The South African Reserve Bank (SARB) had sought such an order in the case, but the judges rejected it on a technicality. They said the court would not be averse to finding she had abused her office, if the correct procedure were followed. 

The judges lashed out at the Public Protector, saying her remedial actions “were a product of a procedurally unfair process and are unlawful” and “the process was not impartial”.

Personally liable

A full bench of judges ordered Mkhwebane to pay 15% of the SARB's costs in her personal capacity. The remaining 85% will be paid by her office.

The Public Protector’s office also has to pay ABSA's costs on an attorney and client scale, including the costs of three counsel.

In addition the court found that the Public Protector’s remedial action with regards to the Special Investigating Unit (SIU) was unlawful and should be set aside.

The Bankorp-CIEX review application was heard in December over three days before a full bench of judges including Pretorius, Mngqibisa-Thusi and Fourie.

It related to the report Mkhwebane released in June last year, 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 had abused her powers.

The judges also agreed with Murphy's judgment in August, in which he rejected Mkhwebane’s argument that her order for the SARB to change its mandate was “a mere recommendation”.

Murphy’s scathing judgment, where he granted the SARB’s request to set aside that order, urged Mkhwebane to reflect on her actions.

He called her argument "disingenuous", and on Friday the full bench concurred that the language used throughout her report was “peremptory”.

Consultation with Presidency and BFLF

The judges also said Mkhwebane's argument for giving the Presidency and the State Security Agency (SSA) the opportunity to consult with her, while ignoring the reviewing parties, “was disingenuous”.

The judgment came down hard on Mkhwebane’s decision to meet with Black First Land First (BLF) at their request, while turning down a similar request for a meeting or consultation from ABSA.

“This, after the BLF had embarked upon an unlawful campaign of intimidation against ABSA, after the report had been published,” the judges said.

Mkhwebane also did not disclose in her report that she had had meetings with the Presidency on April 25 2017 and again on June 7 2017.

“It was only in her answering affidavit that she admitted to the meeting of April 25 2017, but she was totally silent on the second meeting which took place on June 7 2017,” the judgment read. Mkhwebane couldn’t provide an explanation for this.

The judges thus concluded it has been proven that the Public Protector was reasonably suspected of bias.

Mkhwebane recommended that the SIU reopen the investigation into the allegedly stolen funds, but the judges said she did not furnish any reasons as to why the Heath report's findings were irrelevant and why another investigation by the SIU was needed.

This - and her denial of an opportunity to respond before the final report was prepared - was procedurally unfair, the judges said.

Hopefully matter laid to rest

ABSA welcomed the judgment, saying it confirmed the bank's position that it does not owe any money to the government because it paid fair value for Bankorp.

Noting the scathing criticism of Mkhwebane, ABSA said it was pleased that the court agreed that her process in drawing up the report was not procedurally fair.

"The Bankorp matter has been the subject of uninformed speculation and false accusations against ABSA for a very long time,” the bank concluded. “We hope the decision of the high court puts the matter to rest.”

The Public Protector’s spokesperson did not respond to requests for comment.

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