ConCourt is the last resort for Busisiwe
If she loses her appeal against the SA Reserve Bank ruling, the PP will have nowhere left to go
South Africa’s highest court will have to decide the last round of an increasingly bitter legal battle between public protector Busisiwe Mkhwebane and the SA Reserve Bank (SARB) – and the stakes for Mkhwebane are very high.
SARB wants the Constitutional Court to find that Mkhwebane “abused her office” when she conducted her investigation into an apartheid-era SARB bail-out given to Bankcorp, and later ordered that the constitutional mandate of the Central Bank be changed.
The Reserve Bank says the “secretive” way Mkhwebane conducted her Bankcorp investigation – which included undisclosed meetings with the Presidency and State Security Agency – showed that she had an “ulterior purpose to undermine the Reserve Bank”.
According to SARB legal advisor Johannes Jurgens de Jager, records showed that “before she issued her final report, the Public Protector discussed the vulnerability of the Reserve Bank with the SSA and her intended remedial action to amend the Constitution to remove the Reserve Bank’s powers with the Presidency”.
Mkhwebane released her Bankcorp report at the height of the ANC’s leadership battle, as then president Jacob Zuma and his supporters pushed for “radical economic transformation”. In that report, Mkhwebane ordered that the Constitution be amended so that the mandate of the Reserve Bank would be “to promote balanced and sustainable economic growth in the Republic, whilst ensuring that the socio-economic well-being of the citizens is protected”.That new mandate, which would have replaced the SARB’s primary objective as being protection of the value of the rand, fell squarely within the definitions and aims of radical economic transformation. Mkhwebane admitted in the early stages of the SARB Bankcorp litigation that she had been wrong to seek a SARB constitutional amendment, but insisted her report was based on solid economic advice.
Some of that advice, Mkhwebane has confirmed, was given by “a well-known author and a former independent non-executive director of the South African Reserve bank” Stephen Goodson. Goodson, a Holocaust denialist, has written a book praising Hendrik Verwoerd as “South Africa’s Greatest Prime Minister”.
If SARB obtains an order that Mkhwebane abused her office in the Bankcorp investigation, it will add greater impetus to calls for a parliamentary inquiry into her fitness to hold office. Parliament’s justice committee will continue deliberations on whether to institute such an inquiry in August.
Mkhwebane, meanwhile, wants the Constitutional Court to reverse the Pretoria High Court’s damaging findings that she could be reasonably suspected of bias and “that I do not understand my constitutional duty to be impartial and to perform my functions without fear, favour or prejudice”. Those findings would be pivotal in any fitness inquiry she may face.
She is also challenging the estimated R900,000 personal costs order made against her after SARB and Absa, which took Bankcorp over in the 1990s, successfully overturned her entire report.
This personal costs order was the first of its kind ever given against the public protector.Mkhwebane wants the Constitutional Court to rule that the costs order “impacts adversely and directly on the exercise by the public protector, a chapter nine institution, of her constitutional power, obligations and functions without fear, favour or prejudice”.
She adds that she may well investigate SARB in the future, and the costs order made against her in the Bankcorp case could result in “my independence and impartiality in any future investigation by my office involving the SARB being adversely affected or seriously placed in doubt in the eyes of the public”.
Mkhwebane persuaded the Constitutional Court to hear her appeal after arguing that “prejudices to the public good and good governance may occur if this application is not granted” and “the issue to be decided has a grave bearing on the soundness of our constitutional democracy”.
She insists there are innocent explanations for her meetings with the SSA and Presidency, and the finding of suspected bias made against her isn’t fair.