Absa takes Busisiwe Mkhwebane’s directive on Bankorp to the high court
Mkhwebane’s remedy that R1.125bn be recovered after purchase rests on ‘material errors of fact’, Ramos says in high court papers
Absa CEO Maria Ramos has taken on Public Protector Busisiwe Mkhwebane, attacking her controversial report into the Bankorp lifeboat in a 78-page affidavit filed in the High Court in Pretoria on Thursday.
The remedial action prescribed by Mkhwebane, that the Special Investigating Unit should recover R1.125bn from Absa for apartheid-era assistance to Bankorp, which Absa bought, rested on “material errors of fact”, Ramos said in the papers.
“We look forward to this case being brought to court. The years of baseless accusations have been unfair and prejudicial to Absa,” Ramos said.
Pressure is mounting on Mkhwebane, who this week backtracked on a proposal, in the same report, to change the Reserve Bank’s constitutional mandate. The Bank, Treasury and Parliament all launched court applications opposing the recommendation as unconstitutional. The Treasury has also applied to have Mkhwebane’s findings about Absa set aside, saying she had disregarded the evidence before her.
These sentiments are echoed by Ramos. The public protector “picks and chooses aspects of various reports before her, deliberately ignoring facts and findings that do not suit her conclusion”, Ramos said.
For example, Mkhwebane referenced findings by an independent panel of experts headed by Judge Dennis Davis, but “conspicuously omits to mention the conclusion of the Davis panel”.
The panel found Absa had paid a higher price for Bankorp that factored in the Reserve Bank lifeboat. The lifeboat helped to offset a portion of Bankorp’s bad debts and did not benefit Absa, Ramos said.
Mkhwebane had ignored this finding and instead relied chiefly on the CIEX report of retired British intelligence officer Michael Oatley. He produced that report after an agreement with the South African Security Services, in terms of which he would earn commission on any money recovered from Absa.
In court papers filed in an earlier matter involving Black First Land First, former finance minister Pravin Gordhan said CIEX had recommended recovering money from Absa through coercion and threat. This was done to deny Absa the chance to defend itself in court. The government had correctly “repudiated this egregious form of bounty-hunting” and appointed the Davis panel, he said.
Absa would also challenge the report on the grounds that the process was procedurally flawed, the debt had prescribed and the public protector lacked jurisdiction. The bank brought its review in terms of the Promotion to Administrative Justice Act, alternatively the constitutional principle of legality.