Public protector Busisiwe Mkhwebane. Picture: SUPPLIED
Public protector Busisiwe Mkhwebane. Picture: SUPPLIED

Non-profit organisation Open Secrets on Tuesday lost its bid to join as an amicus curiae in the matter between the Public Protector, Absa, the Reserve Bank and the Finance Minister in relation to the Absa-Bankorp report.

The hearing of the case into the so-called Absa-Bankorp lifeboat  began with an application by Open Secrets to join the matter as a friend of the court.  This followed concerns by Open Secrets that the High Court’s determination could close the door on the investigation of apartheid-era economic crimes altogether.

Open Secrets describes itself as an independent non-profit “with a mission to promote private-sector accountability for economic crime and related human rights violations in Southern Africa”.

“All we want is to ensure the court does not make an order that prevents further investigation of apartheid-era economic crimes,” Open Secrets’ advocate Seena Yacoob said. “Open Secrets does not take a position on the issue between the parties.”

But Judge Dawie Fourie said tThe role of an amicus was to be of assistance to the court by putting forward submissions that were relevant to the matter before the court.

Fourie is one of three judges hearing the Absa-Bankorp case. Review applications brought by the Reserve Bank, Absa and the Finance Minister, which have since been consolidated, are seeking to have certain findings and remedial action contained in Public Protector Busisiwe Mkhwebane’s report of June 19 set aside.

Notably, all the parties are looking to have Mkhwebane’s finding that Absa repay R1.125bn to the government for an apartheid-era bailout of Bankorp, later bought by Absa, set aside on the grounds that Absa did not owe such a debt to the government.

“It is clear from the rules of court that the role of an amicus is to be of assistance to the court, by putting forward submissions that are relevant to the court, will be useful and are different from those of the other parties. If these requirements are not met, the court should refuse the application,” Fourie said in handing down judgment.

“Open Secrets wants to advance an entirely new course of action, which falls outside the ambit of the main issue referred to above [and] will not assist the court in considering and deciding the main issue. For these reasons the application is refused.”

Open Secrets could, instead, lodge a separate complaint with the Public Protector, or any other appropriate organ of state, in respect of apartheid-era economic crimes that it submitted had not been sufficiently investigated or remediated, Fourie said.

In a separate case, it is, together with the South African History Archive, seeking a court order forcing the Reserve Bank to release records pertaining to individuals who had been implicated in apartheid-era financial fraud.

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