A losing battle: Public Protector loses war against Absa, with costs

A losing battle: Public Protector loses war against Absa, with costs

- Busisiwe Mkhwebane lost the battle against Absa

- The High Court ordered her to pay costs to the defendants, both in her personal and professional capacity

- The court also set aside her direction to the SIU to reopen a previous investigation into the apartheid-era lifeboat granted to Bankorp

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On Friday morning, Busisiwe Mkhwebane, the Public Protector, lost the war against Absa in the High Court in Pretoria.

This comes after the court set aside the corrective action contained in her Absa-Bankorp report. The High Court ordered her to pay 15%, in her personal capacity, of the Reserve Bank’s costs.

Judge Cynthia Pretorius said in her judgment, "It transpired that the public protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice."

Judge Pretorius said in this case, a simple punitive costs order against her in her official capacity will not be appropriate, adding that in this case, the court had to go further and order the public protector to pay at least a certain percentage of the costs incurred on a disciplinary scale.

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In the ruling, the judge ordered Mkhwebane, in her official capacity, pay Absa’s costs, on an attorney and client scale. This includes the costs of three counsel.

At the same time, she was ordered to pay 85% of the Reserve Bank’s costs. This includes the cost of three counsel, in her official capacity and 15% in her personal capacity.

The High Court also set aside the Public Protector’s direction to the Special Investigating Unit to reopen a previous investigation into the apartheid-era lifeboat granted to Bankorp to recover misappropriate public funds unlawfully given to Absa Bank.

According to a report by BusinessLive, Absa bought Bankorp in 1992, making it a recipient of the Reserve Bank’s assistance.

In 2000, a probe by a panel, headed by Judge Dennis Davis, found the amount paid for Bankorp took into account the bank’s lifeboat. The investigation found Absa therefore did not benefit.

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The Public Protector’s office reopened the case after advocate Paul Hoffman, the director of Accountability Now, laid a complaint in 2010 over the government’s alleged failure to implement the "Ciex report".

This report was compiled by British Intelligence officer, Michael Oatley. Briefly.co.za gathered that in 1997, Oatley agreed to help the government recover misappropriated apartheid-era public funds.

According to reports, in the papers, the finance minister, the Reserve Bank and Absa continuously declared Mkhwebane’s findings paid no regard to the evidence before her.

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Source: Briefly.co.za

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