NEWS

Public Protector's Mistakes 'Were Not Made In Bad Faith', Argues Advocate

"It appears as if the Reserve Bank is trying to have Mkhwebane removed from her office."

07/12/2017 06:31 SAST | Updated 07/12/2017 06:33 SAST
MARCO LONGARI/AFP/Getty Images
A security official stands at the shuttered entrance to the closed Absa Bank headquarters in Johannesburg on June 28, 2017, as unseen members of the Black First Land First movement (BLF) demonstrate.

Even if Public Protector Busisiwe Mkhwebane made some mistakes during her investigation of the Absa/CIEX matter, this did not mean she had abused her office and acted in bad faith, the High Court in Pretoria heard on Wednesday.

Business Day reported that the SA Reserve Bank, which is challenging Mkhwebane's report, argued that she made material errors in her investigation.

The Reserve Bank, Absa, and the finance minister want the court to set aside the findings of the report, which found that Absa had to pay back R1-billion following a loan its predecessor was reportedly given by the apartheid government.

Mkhwebane also recommended that the Reserve Bank's mandate be changed, which would require a change of the Constitution. Lawyers have argued that she overstepped her mandate.

But even if this was true, her lawyer, advocate Paul Kennedy, reportedly argued that this did not mean she had abused her office.

Kennedy reportedly said it appeared as if the Reserve Bank was trying to have Mkhwebane removed from her office.

This followed statements by counsel for the Reserve Bank, David Unterhalter, that "it would be for the other branches of government, the legislature in particular, to consider what to do" if the court finds that Mkhwebane abused her office.

"Mistakes do happen, but these are not necessarily mala fide," Kennedy reportedly argued.

Unterhalter also argued that Mkhwebane should not have investigated the issue at all, according to The Times. He reportedly said the Absa "lifeboat" happened between 1995 and 1985, outside the two-year period stipulated by the Public Protector Act.

"You can't justify an exercise of discretion to enjoy jurisdiction by saying it was a right decision, 'look what I have found in the end of the case'. You have to have jurisdiction before you can start the case. You can't use the yields of the case to justify the adoption of a complaint‚" he reportedly said.

Fin24 reported that Kennedy was concerned about how the Reserve Bank's approach would damage the institution of the Public Protector.

"When the institution is undermined, this is what the strategy in fact amounts to; the consequences will be serious. What is particularly serious and concerning -- it is an institute of state [Reserve Bank] itself which is required to be impartial -- is reacting in a partisan, unjustified manner by attacking another important institute of state [Public Protector]," he said.