Busisiwe Mkhwebane. Picture: AFP PHOTO
Busisiwe Mkhwebane. Picture: AFP PHOTO

Advocates for the finance minister, the Reserve Bank and Absa delivered blistering attacks on Public Protector Busisiwe Mkhwebane’s Absa-Bankorp report in the High Court in Pretoria on Tuesday, raising serious doubt about her motives.

The importance of the public protector in SA’s constitutional democracy necessitated that she "not misuse the powers afforded her" and complied with requirements of legal fairness, "at the heart of which is rationality", said Tembeka Ngcukaitobi, counsel for Finance Minister Malusi Gigaba.

"In order to be rational, a decision must be based on accurate findings of fact and correct application of the law."

In papers, Gigaba, the Bank and Absa have repeatedly asserted that Mkhwebane’s findings paid no regard to the evidence before her, including the findings of previous probes into the Absa-Bankorp lifeboat and submissions made by various parties on the matter.

The arguments presented by the applicants on Tuesday suggest that, at best, Mkhwebane has been incompetent and negligent in this investigation and, at worst, had ulterior motives.

Mkhwebane had not disclosed in her report that she had held two meetings with the Presidency to discuss her remedial action before issuing her findings, said counsel for the Reserve Bank Kate Hofmeyr.

She had also declined to engage with Absa following the release of her preliminary report and had instead met with Black First Land First (BLF), said Gilbert Marcus, appearing for Absa. "The public protector was prepared to engage with an avowed adversary to Absa [BLF] but not Absa itself."

Three high court judges are hearing the matter, which dates back to a 2010 complaint laid with the public protector by Paul Hoffman, the director of Accountability Now, over the government’s alleged failure to implement the "Ciex report". The report was the work of British Intelligence officer Michael Oatley, who in 1997 agreed to help the government recover misappropriated apartheid-era public funds. This included a bail-out granted to Bankorp.

Absa later bought Bankorp and, Oatley alleged, benefited from the Reserve Bank assistance — a conclusion with which Mkhwebane agreed.

In a report published in June, she directed that the Special Investigating Unit approach the president to reopen an earlier probe into the matter in order to recover R1.125bn "in misappropriated public funds unlawfully given to Absa".

Such a directive was neither permitted by the Public Protector Act nor the Special Investigating Units and Special Tribunals Act, said counsel for Absa Carol Steinberg.

Mkhwebane also found that, in failing to implement the findings of the Ciex report, the government had neglected its constitutional duty.

This relied on a "fundamental misunderstanding of the Ciex agreement", said Ngcukaitobi.

"It is factually inaccurate that the government did not act on the report. It referred the matter to the [Special Investigating Unit]," said Ngcukaitobi.

The head of the unit at the time, Judge Willem Heath, found that recovering the money from Absa would cause systemic risk to the banking system.

A second independent investigation by Judge Dennis Davis in 2000 found that the amount paid by Absa for Bankorp accounted for the Reserve Bank assistance and Absa was therefore not a beneficiary of the lifeboat.

The matter resumes in the high court on Wednesday.


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