Public Protector Busisiwe Mkhwebane. Picture: SIMPHIWE NKWALI
Public Protector Busisiwe Mkhwebane. Picture: SIMPHIWE NKWALI

Public Protector Busisiwe Mkhwebane has until Friday to submit her papers providing reasons why her Ciex-Absa report should not be reviewed and set aside.

Her lawyers abandoned a high court application to postpone the matter on Friday.

Mkhwebane has missed a number of deadlines to file her answering affidavit in combined proceedings brought by the Reserve Bank, Absa and the finance minister to review and set aside the report. The report challenges the central bank’s role as a lender of last resort and requires that Absa pay back more than R1bn granted to Bankorp in fulfilling this role.

Bankorp has since been taken over by Absa.

"The public protector gave argument, then Absa and the Reserve Bank gave argument," Duncan Wild, an attorney at Webber Wentzel, which is acting for Absa, said on Sunday. "Before the minister could present argument, the protector indicated they would withdraw her application for a postponement."

Mkhwebane offered to pay punitive costs for the aborted application. Her previous legal team dumped her two weeks before the deadline for filing the answering affidavit in October.

Cleopatra Mosana, spokesperson for the Public Protector, failed to respond to queries about the reasons for the withdrawal over the weekend.

But Mkhwebane approached the court after failing to get the other three parties to agree to a postponement, asking if she could file the answering affidavit and the subsequent hearing to the first quarter of 2018. She did this on the grounds that she had to replace her entire legal team, and that the new team had not had sufficient time to study the court record and prepare a defence.

Her previous legal team dumped her two weeks before the deadline for filing the answering affidavit in October.

The Reserve Bank rejected this argument, saying she failed to tell the court that the Bank had offered to accommodate the change in attorneys, a proposal Mkhwebane had rejected.

It also 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 Werksmans’ Corlett Manaka, for the Bank. "Instead, she made requests of the other parties to agree to a postponement."

With the application withdrawn, Judge Billy Mothle has set new deadlines for the case to proceed, while keeping the December 5 hearing in front of a full bench of judges intact.

Wild said Mkhwebane was given a midday deadline to file her answering affidavit on November 24, with the Reserve Bank, Absa, and the minister to respond three days later.

Heads of argument from the public protector would follow on November 29, followed by the other parties' heads on the 30th. The hearing will then take place for three days from 5 December.

maakem@bdfm.co.za

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