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

Three conclusions stand out from Tuesday’s high court judgment in the matter between the public protector and the South African Reserve Bank in which the former’s remedial action was set aside and declared unconstitutional.

Busisiwe Mkhwebane had said Parliament had to amend the Constitution to change the mandate of the Reserve Bank.

The first conclusion is that the public protector has inflicted unnecessary damage on the country and the economy. The second is that she has done the same to herself and her office. The third is that it is quite possible that she is not finished yet.

There was no prospect that the court could have found anything different.

Early on, Mkhwebane conceded that she had erred in instructing Parliament to amend the Constitution and so did not oppose the Bank’s application. She also offered to pay the costs, which must have been hefty. Nine advocates alone appeared in the matter.

The judgment overturned the remedial action on several grounds: it violated the principle of separation of powers; it was procedurally unfair; and it was irrational because the evidence presented was not rationally connected to the conclusions drawn.

The argument in Bank governor Lesetja Kganyago’s affidavit and that of the National Assembly Speaker Baleka Mbete, also a respondent, was scathing of Mkhwebane’s conduct of the Bankorp investigation, her failure to understand the Constitution and the mandate of the Reserve Bank and her selective consideration of the evidence.

It is no exaggeration to say that — before the full review of the Bankorp report even begins — many of the facts and arguments in her report have been thoroughly demolished.

The humiliation she has suffered in withdrawing her opposition to this application before it was heard, is not yet complete. Round two, when the basis for findings is examined, is still to come.

One of the difficulties she will face is that she failed to take into account much of the evidence before her.

In between releasing her provisional report in December 2016 and the final report in June Mkhwebane received detailed representations from the Reserve Bank, the minister of finance and Absa, pointing out the factual errors she had made.

In the intervening period, she conducted two additional interviews with witnesses. One was with the State Security Agency and the other with author Stephen Goodson, who holds controversial and unorthodox views on monetary policy, including that it should be "nationalised".

While the written representations were evidently ignored, the two interviews influenced her immensely. Although the mandate of the Reserve Bank had not been part of the investigation, it was a major part of the final report, which made damaging recommendations that, if implemented, would undermine the Bank’s independence.

It was this that left the Bank, the public and investors in no doubt that the public protector’s report on the Bankorp lifeboat was nothing other than a blatant political attack on the Bank’s constitutionally enshrined independence.

The Bank, backed by the Treasury, has aggressively seen her off. But the damage and dangers have not gone away. Judge John Murphy pointed out in the judgment that Mkhwebane still held firm to her belief that she was rational and correct to question the mandate of the Reserve Bank.

Judge Murphy ended with a word of advice: she would do well to reflect more deeply on her conduct if she was to protect her reputation.

The full review is likely to be heard in 2018. There is still time then for her to re-examine her motives and those of the people who it seems influenced her so profoundly.

Please login or register to comment.