Court trashes Public Protector Busisiwe Mkhwebane, again

Public Protector Busisiwe Mkhwebane has been criticised for allegedly serving the interests of former president Jacob Zuma's government and the judgment from a full panel of judges on Friday has led to further calls for her to be removed from office.

The North Gauteng High Court was scathing as it set aside her the remedial action in Mkhwebane's “alleged failure to recover misappropriated funds” report that said the Special Investigating Unit (SIU) must recover over R1-billion from Absa for the loans Bankorp, which Absa later bought, received from the Reserve Bank during apartheid. This is the second ruling against the report, after the court said last year that Mkhwebane had no powers to call for a constitutional amendment to modify the Reserve Bank's mandate.

The Public Protector's independence and understanding of the law came under scrutiny. The judgment's most scathing comments related to Mkhwebane's meetings with Zuma, which she did not previously disclose, and with the State Security Agency (SSA) and former State Security Minister David Mahlobo, where they discussed how the Reserve Bank was vulnerable. She met them after completing her draft report. The final report then saw significant changes.

“The Public Protector did not conduct herself in a manner which would be expected from a person occupying the office of the Public Protector... She did not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law and that a higher standard is expected of her,” said the judgment.

Mkhwebane met Black First, Land First but denied requests from Absa for a meeting about the draft report. “Having regard to all these considerations, we are of the view that a reasonable, objective and informed person, taking into account all these facts, would reasonably have an apprehension that the Public Protector would not have brought an impartial mind to bear on these issues before her,” said the judgment. “We therefore conclude that it has been proven that the Public Protector is reasonably suspected of bias as contemplated in section 6(2)(a)(iii) of (the Promotion of Administrative Justice Act).”

The court said she could not explain why she was so secretive and only provided “disingenuous” answers. Mkhwebane's meeting with the SSA and Mahlobo in May “cannot be justified in any manner”. The Public Protector's office was ordered to pay 85% of the legal costs for the case and Mkhwebane was personally ordered to pay 15%.

“In the matter before us it transpired that the Public Protector does not fully understand her constitutional duty to be impartial and perform her functions without fear, favour and prejudice,” said the court. It declined Treasury's request to issue a declaratory order saying Mkhwebane had abused her office. But that was declined because Treasury only requested it in an answering affidavit and the judges said it could be a case for another court.

Mkhwebane's remedial actions also flouted the law. She told the SIU to investigate, but had already made findings and conclusions. She asked the SIU to approach the president to reopen a case closed 17 years ago, which the SIU has no powers to do. “The Public Protector acted in a manner inconsistent with the provisions of the Constitution and the Public Protector Act, by placing a duty on the SIU to reopen the investigation and to recover the misappropriated funds from Absa.”

DA Shadow Minister of Justice Glynnis Breytenbach said Mkhwebane has repeatedly wasted state funds and is failing as the country's Public Protector. “By all accounts, Mkhwebane is utterly ineffectual and dangerously out of touch with her mandate as Public Protector,” she said. “The DA has always maintained that she is not suitable to head up the Office of the Public Protector, as a crucial institution in the fight against injustice and corruption.”

Mkhwebane's slated report stemmed from a 2010 complaint by Advocate Paul Hoffman from the Institute for Accountability in Southern Africa. He asked former public protector Thuli Madonsela to investigate the government for paying former British spy Michael Oatley's company Ciex £600,000 to investigate apartheid-era bailouts for big business and not acting on the report's findings.

Oatley, who stood to benefit from any recovered funds, said government could recoup up to R3.2-billion from Absa, regarding the loans given to Bankorp, and R3.6-billion from Sanlam and Rembrandt.

The SIU's Willem Heath investigated and in 1999 said the bailout was unlawful and at least R1.1-billion could be recovered from Absa. However, he said it should not be pursued as it could have negative ramifications for the banking sector and the economy. Judge Dennis Davis led a commission into the Reserve Bank loans and also found they were unlawful. However, he said it would be too difficult to identify the beneficiaries. Davis said Absa had not benefited.

Absa welcomed the judgment in a statement and said it confirmed its position that the company doesn't owe government any money in relation to Bankorp. "The Bankorp matter has been the subject of uninformed speculation and false accusations against Absa for a very long time. We hope the decision of the High Court puts the matter to rest," it said. DM

See earlier reports and analysis here and here:

Original Photo: Public Protector, Advocate Busisiwe Mkhwebane (GCIS)