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Mkhwebane breached constitution‚ court told

05 December 2017 - 17:43 By Sipho Mabena
Busisiwe Mkhwebane.
Busisiwe Mkhwebane.

The South African Reserve Bank (SARB) has asked the full bench of the High Court in Pretoria to declare that Public Protector Busisiwe Mkhwebane breached the constitution‚ because she failed to act impartially and independently in her investigation into the Absa/Bankorp “lifeboat” saga.

Of concern to the country’s central bank are several undisclosed and scantily recorded meetings that Mkhwebane had with the presidency and State Security Agency spies during the course of her investigation.

Advocate Kate Hofmeyr‚ for the SARB‚ told the court on Tuesday that there were at least two meetings Mkhwebane had with the presidency and the SSA in the period between her provisional and final reports.

She noted that no other party was afforded the same treatment‚ and that there was no proper recording of these seemingly clandestine meetings.

Hofmeyr said that also of concern was the meeting which Mkhwebane had with the SSA during which the vulnerability of the central bank was discussed.

She reiterated that there was no recording of the meetings‚ but rather‚ in the case of the June 2017 meeting with the presidency‚ a handwritten note that she said appeared to have been scribbled by Mkhwebane herself.

“This investigation was handled in a manner that abuses her office... her independence was further breached by her meeting with the SSA. There was a handwritten note of the meeting [at which] the subject matter was how vulnerable the South African Reserve Bank was‚” Hofmeyr said.

She added that in the meeting with the presidency‚ Mkhwebane’s widely criticised remedial action – that the constitution be amended to take away the core functions of the SARB – was discussed.

Hofmeyr said Mkhwebane has not denied these facts in her answering affidavit – saying she did not even deal with the June meeting with the presidency‚ but revealing another meeting with the presidency in April.

“These facts require a declaratory order from this court. There has been a breach of the constitution by the public protector. The public protector is required to act impartially and independently. She has failed to do that in this instance‚” Hofmeyr said.

Absa and the SARB approached the court to set aside a report Mkhwebane released in June‚ in which she ordered Absa to repay R1.125-billion in loans provided to Bankorp by the SARB during the apartheid era‚ in what became known as the “lifeboat scandal”.

The matter continues on Wednesday.