Still not ready to defend Absa writ
Mkhwebane asks high court to set hearing for first quarter of 2018
Public Protector Busisiwe Mkhwebane has failed to file an affidavit explaining why her report on the Bankorp-Absa bail-out should not be reviewed and set aside, and has asked the High Court in Pretoria to postpone this and the subsequent hearing to 2018’s first quarter.
Mkhwebane had given undertakings that she was ready to defend the report — which required the Reserve Bank’s role as a lender of last resort to be reviewed. The report also recommended that Absa repay more than R1bn the Bank had advanced to Bankorp (subsequently acquired by Absa) in fulfilment of this role.
She said she would do so in an answering affidavit on October 23, an extended deadline she has now missed again after the first deadline of October 16.
"This application is made at the back of various attempts by the applicant to secure a postponement of the dates set out in [the] Deputy Judge-President’s directives, by consent," said Mkhwebane.
She has asked the court to file her answering affidavit at the end of January 2018, with hearings in March.
THE HEARING NEEDED TO TAKE PLACE IN DECEMBER DUE TO THE CLOUD OVER FINANCIAL MARKETS.
Mkhwebane’s previous legal team dumped her two weeks before the first deadline. She argued that the new team was unable to peruse the court record, which exceeded 7,000 pages, by the required deadline.
By October 6, "it was apparent to the legal team that they would not meet the timelines as directed, but also could not, absent an opportunity to consider the papers … at a cursory level, be in a position to commit to any dates," according to Mkhwebane.
The Reserve Bank has rejected Mkhwebane’s bid to postpone the court process, saying it had tried to accommodate the change in attorneys.
Corlett Manaka, an attorney at Werksmans acting for the Bank, said Mkhwebane had not given any explanation as to why she needed until the end of January to file her affidavit, and had also failed to explain what work had been done by her former and current legal representatives since the review applications had been launched.
"No reference is made to the fact that on 31 October 2017, [the Bank], in an endeavour to accommodate the public protector, made a proposal to the public protector for an amended timetable for the filing of her answering affidavit that would have given her until 10 November 2017 to file it, so that the hearing dates of 5 to 7 December could be maintained," Manaka said in his response.
"No mention is made of the fact that this proposal was dismissed out of hand by the public protector."
Manaka said Mkhwebane should have brought the postponement application immediately on learning her legal team could not process the workload in time to meet the deadline.
"She did not do so," said Manaka. "Instead, she made requests of the other parties to agree to a postponement."
The Reserve Bank’s attorneys refused, instead offering an extension to November 10 to file her answering affidavit, according to correspondence included in the court record.
Manaka stressed that the hearing needed to take place in December due to the cloud the report has brought over financial markets. The longer these applications remain unresolved, the greater the uncertainty in the market, he said.