They want me out – Public Protector
Publish date: 07 December 2017
Issue Number: 4365
Diary: Legalbrief Today
Notwithstanding the argument that she had no jurisdiction to investigate the matter in the first place (see report below), Public Protector Busisiwe Mkhwebane has decried an attack on her integrity‚ saying such an attack was designed to pave the way for her removal from office. Her lawyer‚ Advocate Paul Kennedy‚ implored the Gauteng High Court (Pretoria) not to be part of this ploy and to take a dim view of this approach, says a TimesLIVE report. He took particular issue with the SA Reserve Bank’s ‘most unbecoming and seriously disturbing approach’‚ saying the personal attack on Mkhwebane’s integrity was unwarranted. Kennedy said this ‘unwarranted and most unfortunate‚ inappropriate attack’ was not only an attack on her personally but an attack on the office that she occupies‚ saying this would have serious consequences on the public’s confidence in the office. ‘What we would submit is that the court should not be part of the game‚ strategy or approach‚’ he said. The Reserve Bank is seeking a declaratory order that Mkhwebane abused her office and breached the principles of independence and impartiality in her handling of her probe into Absa/Bankorp ‘lifeboat’ saga. Of concern to the Reserve Bank were several undisclosed and scantly recorded meetings that Mkhwebane had with the Presidency and the State Security Agency during the course of her investigation. But Kennedy argued that the declaratory order would undermine the office of the Public Protector and that even if the court found her conduct raised a reasonable apprehension of bias‚ this did not justify the court finding that she abused her office or breached the Constitution.
Kennedy suggested that the SARB still had a bitter taste in its mouth following the Public Protector’s challenge to its constitutional mandate. The court had set aside the remedial action, notes a Fin24 report. ‘That is water under the bridge. The earlier application was dealt with and disposed of. The Public Protector conceded she went too far.’ He also pointed out that the other applicants, Absa and the Minister of Finance, were not seeking a declaratory order. He added that if the Public Protector was found to be wrong, then she was just wrong; it does not prove an abuse of power. Referring to the meeting with the Presidency, Kennedy said that it was put forward as something ‘sinister’ or a deliberate deception of the court. ‘There is nothing to show the meeting with the Presidency and BLF influenced or was meant to influence the Public Protector.’ He also said that an explanation for the meeting had been provided. ‘Even if not adequately explained, it does not come in the ambit of abuse of office.’ He said Mkhwebane’s omission of the meetings in her submissions was a matter of human oversight. ‘In the real world, mistakes happen.’ Just because someone fails to meet high standard does not logically mean there is an abuse of powers. But the Reserve Bank’s counsel David Unterhalter SC took aim at Mkhwebane for the omission. ‘The Public Protector herself is a lawyer, highly trained, and cannot blame her legal team for omissions.’ He argued that Mkhwebane had failed to be frank and candid with the court in her explanations, which is below the standard of what is required by her office.
Kennedy’s arguments did not deflect the Reserve Bank from going for the jugular. Unterhalter argued that in fact‚ the Public Protector had no jurisdiction in the matter in the first place. He pointed out the transactions happened between 1985 and 1995‚ more than the two years prescribed by the Public Protector Act to initiate an investigation. He said based on this two-year prescribed rule‚ the matter was outside her ambit, notes a TimesLIVE report. Mkhwebane‚ Unterhalter argued‚ had failed to demonstrate the ‘special circumstances’ required by the Public Protector Act for her to exercise her discretion in taking up an investigation of an incident that happened more than the two prescribed years. He said if there were special circumstances‚ Mkhwebane ought to show proper appreciation of the rule‚ demarcate the special circumstances and explain how the discretion was exercised. ‘They (reasons) should be extraordinary that it warrants not the application of the rule…there is nowhere in the report where (Mkhwebane) discusses how the discretion was to be exercised‚’ Unterhalter told the court. He said if the jurisdictional attack was sustained‚ then everything that flows from Mkhwebane’s final report must fall. Unterhalter dismissed the argument by Kennedy‚ that Mkhwebane’s findings of illegality and impropriety regarding the transaction were justification for taking up the investigation. ‘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 charged.