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

In August, when Judge John Murphy set aside the remedial action proposed by Public Protector Busisiwe Mkhwebane in her report on the bail-out of apartheid-era bank Bankorp, he warned that she risked the charge of "hypocrisy and incompetence" if she did not hold herself to an equal or higher standard of legality than those subject to her writ.

In that instance, which was the urgent part of the application, the court struck down Mkhwebane’s instruction to Parliament that it amend the Constitution to change the South African Reserve Bank’s mandate.

Murphy described Mkhwebane’s reasoning that the mandate of the Bank be changed as "superficial and erroneous" and found that she had not established a rational basis for the proposed remedial action.

Now, as the Bank proceeds with the rest of its review application on the report, Mkhwebane has been shown up to be worse than hypocritical and incompetent. Dishonest, unfair, biased and having ulterior motives are the charges that now come to mind in the light of an explosive supplementary affidavit lodged in the High Court in Pretoria on Tuesday.

The affidavit, lodged by the Bank’s general counsel, Johannes de Jager, is based on the responses it received from the public protector’s office to its request for the record of decision that informed the final report.

The record eventually received, says the Bank, had numerous omissions, was incomplete and unclear, and in the end included sketchy handwritten notes by Mkhwebane. A critical omission was the transcripts of the meetings she had between sending out her draft report in December 2016 and the final one in June 2017.

Mkhwebane has been shown up as worse than hypocritical and incompetent

Of these, there were three: one with the legal advisers in the Presidency; one with controversial author Stephen Goodson; and a third with the State Security Agency.

Even though the Treasury, the Bank and Absa – which is implicated as it later took over Bankorp and Mkhwebane argues it therefore benefited from the bail-out – all sent detailed submissions to the draft report, Mkhwebane met with none of them and there is no indication that she took their submissions into account.

The meeting with the Presidency was not disclosed at all in her final report, even though the record shows that at the time it took place in June, Mkhwebane substantially changed the focus and the remedial action of her investigation, a material development by any measure.

Her new concern became the reopening of an investigation into the Bankorp matter by the Special Investigating Unit and a change in the constitutional mandate of the Bank.

In the meeting with the State Security Agency, Mkhwebane’s handwritten notes show that she jotted down the question with reference to the Reserve Bank: "How are they vulnerable?"

As the few notes are the only record of the meeting with the State Security Agency, De Jager argues that her investigation intended to undermine the Bank and that her notes are evidence of bias. The court is asked to set aside her remedial action on the additional grounds that it was unfair, biased and had an ulterior motive.

The record of decision also shows that Mkhwebane paid only cursory attention to the other critical role of the Bank, which is as a lender of last resort.

Aside from the glaring weaknesses in her reasoning and the clear bias adopted in the final and critical stage of her investigation, the scant attention to detail and the shocking neglect of process and procedure displayed by Mkhwebane are alarming and fall far below the standards for ordinary conduct, never mind the conduct of an office as important as hers. 

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