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

Public Protector Busisiwe Mkhwebane could soon be R900,000 poorer, following a judgment that left the door open for a further order that she abused her office in her handling of the Absa-Bankorp matter.

In a judgment handed down on Friday — which set aside Mkhwebane’s finding that R1.125bn be recovered from Absa for an apartheid-era bailout granted to Bankorp, later bought by Absa — a full bench of the High Court in Pretoria found that Mkhwebane should pay a portion of the South African Reserve Bank’s legal costs in her personal capacity.

"It is necessary to show our displeasure with the unacceptable way in which she conducted her investigation," Judge Cynthia Pretorius stated. "In the matter before us, it transpired that the public protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice."

Mkhwebane would be asked to "express an opinion on that opinion about her", when she appears before Parliament’s portfolio committee on justice and correctional services on Thursday, according to chairman Mathole Motshekga. Mkhwebane was originally called to appear before the committee after the release of her report on the Vrede dairy project, which was allegedly used to channel millions of rand to the Gupta family. The DA, which is taking the report on review, said it displayed no effort to "probe the true corruption at the heart of the Vrede scam".

In Friday’s judgment, Pretorius ordered that Mkhwebane pay 15% of the Bank’s costs from her own pocket. The remaining 85% was to be paid by her office, which was also ordered to pay Absa’s legal fees.

"The costs on a punitive scale will certainly be in the millions of rand — probably around R5m-R6m for each party," said an attorney with extensive litigation experience, who declined to be named. The figures suggest Mkhwebane could be R750,000 to R900,000 out of pocket.

The public protector said on Friday she had noted the judgment "with shock" and would decide on appropriate action. Three judges heard the matter, relating to an apartheid-era lifeboat loan to Bankorp.

An earlier probe headed by Judge Dennis Davis found that, while the lifeboat was unlawful, Absa had paid fair value for Bankorp and received no benefit from the lifeboat. The judgment upheld the respondents’ assertions that Mkhwebane’s findings paid no regard to the evidence before her, that the remedial action prescribed was unlawful, and that she had conducted her probe in a procedurally unfair manner. Mkhwebane had held secret meetings with the Presidency and the State Security Agency, at which the Bank’s vulnerabilities were discussed.

She had also met with Black First Land First, despite denying Absa a meeting.

While the judgment stopped short of granting a declaratory order sought by the Bank that Mkhwebane had abused her office — on the grounds that Mkhwebane was not given a sufficient chance to oppose it — it paved the way for one to be brought. "This court will not issue a declaratory order, although it will be possible … to apply … for such an order."

The DA has called for Mkhwebane’s removal.

With Claudi Mailovich