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Mkhwebane’s integrity under spotlight

05 December 2017 - 14:39 By Sipho Mabena
Public Protector Busisiwe Mkhwebane . File photo
Public Protector Busisiwe Mkhwebane . File photo

Absa has raised serious concerns of lack of jurisdiction‚ independence‚ impartiality and procedural fairness – and a report riddled with plagiarised work – in Public Protector Busisiwe Mkhwebane’s handling of the Absa/Bankorp “lifeboat” investigation.

On Tuesday‚ the High Court in Pretoria heard from Absa’s legal team how Mkhwebane had refused to hear Absa out after the release of her provisional report‚ but had no problem meeting with the presidency‚ the State Security Agency‚ and Absa’s “adversaries”‚ the Black First Land First (BLF) movement.

Advocate Gilbert Marcus SC‚ for Absa‚ said it was common cause that BLF protested against Absa after the leaking of the provisional report‚ and that the same organisation and the ANC Youth League marched to Absa after the release of Mkhwebane’s final report.

He said Mkhwebane also refused his clients access to the original complaint.

Marcus said that this‚ as well as Mkhwebane’s refusal to hear Absa out‚ exposed her lack of appreciation of the principle of procedural fairness‚ and that her failure to hear Absa out while she did take submissions from other parties amounted to bias.

“These [meetings] took place during the course of finalising the report – this was post-provisional report. She justifies these meetings on the basis that these parties were implicated‚ but did not afford Absa the same‚” he said.

The full bench of the court is hearing arguments from Absa‚ the South African Reserve Bank (SARB) and the treasury on why Mkhwebane’s finding that Absa benefited unduly from an apartheid-era bail-out of Bankorp was incorrect‚ and should be set aside.

Marcus said Mkhwebane had stated in her final report that Absa had improperly benefitted from the R1.125-billion SARB Bankorp bailout between 1985 and 1995 and that these funds should be recovered‚ but that she was now‚ in her replying affidavit‚ telling the court that this was just a recommendation.

He said this was not the first time Mkhwebane had made an about-turn – she did the same when her remedial action to amend the constitution to change the SARB mandate was challenged.

Marcus said Mkhwebane’s interpretation of her remedial action did not do her office any credit‚ saying‚ “Five years after investigating‚ she recommends another investigation?”

He also pointed the court to sections in Mkhwebane’s report that he said were lifted verbatim from economist Dr Tshepo Mokoka’s report on the legality of the Bankorp SARB loan.

Marcus said Mkhwebane lifted Mokoka’s conclusion that the transaction was illegal and used it in her report as if it were her finding.

He said if Mkhwebane were a student‚ she would have been disciplined for plagiarism.

Absa also questioned Mkhwebane's jurisdiction‚ in terms of whether she had a mandate to investigate matters that happened before the Public Protector Act‚ which established her office‚ came into effect.