My many blapses were just ‘bad judgment’, pleads Mkhwebane
Public protector vows she ‘wasn’t trying to deceive', as she tries to get out of paying R900k in legal costs
Public protector Busisiwe Mkhwebane’s advocate says she may have showed “bad judgment”, “misdirected herself” and made “errors” in her investigation into the Reserve Bank’s apartheid-era Bankorp bailout – but he denies she acted in bad faith.
Advocate Vuyani Ngalwana told the Constitutional Court on Tuesday that Mkhwebane had sought to clarify these “mistakes”, which he maintains were not acts of deliberate deception.
“Why so many errors?” Chief Justice Mogoeng Mogoeng then asked.
“You make an error, you clarify it. You make another error, you clarify it. You make another error, you clarify it. What is the meaning of this?”
Ngalwana responded: “The only submission I can make is that this is indicative of a public protector under siege.”
He said Mkhwebane was currently facing two court cases in relation to her Estina Dairy Project investigation, in which personal costs orders were being sought against her.
Mkhwebane also recently came under fire over her “preliminary investigation” into public enterprises minister Pravin Gordhan – in relation to an early retirement payout given to former SARS commissioner Ivan Pillay.
She has denied allegations that the investigation was meant to embarrass and frustrate Gordhan on the eve of his appearance before the state capture inquiry, as she had subpoenaed him 20 days before finding out when he was expected to appear.
The public protector’s office has yet to confirm whether she will proceed with an investigation into Gordhan.
In the meanwhile, Mkhwebane has asked the Constitutional Court to reverse an estimated R900,000 personal costs order granted against her by the Pretoria High Court in connection with her Bankorp case. That court slammed Mkhwebane for the “unacceptable way” in which she conducted her Bankorp investigation, and found that she could reasonably be suspected of bias.
Mkhwebane was forced to admit she got it wrong when she ordered parliament to change the constitutional mandate of the Reserve Bank so that it was no longer focused on protecting the value of the rand.
The announcement of that remedial action was followed by a drop in the value of the rand, and the sale of R1,3bn in government bonds.
The Reserve Bank, represented by advocate Kate Hofmeyr, maintains that Mkhwebane was biased and dishonest in her investigation, and never sought its input on her far-reaching, and ultimately aborted, remedial action.
“She conducted a partisan investigation which was aimed at undermining the Reserve Bank,” the bank stated.
The bank maintains that, should Mkhwebane be allowed to appeal the costs order against her, the Constitutional Court should rule that she abused her office in this investigation.
“These failings are not innocent errors or mistakes. They form a consistent pattern of obfuscation and avoidance. They deserve censure, both in the form of the personal costs ordered against the public protector and the declaratory order sought.”
In its Bankorp ruling, the Pretoria High Court expressed concern that Mkhwebane had met the State Security Agency and the presidency less than two weeks before she released her far-reaching Bankorp report‚ without disclosing this to the Reserve Bank or Absa.
Ngalwana maintains it was not necessary for Mkhwebane to consult with the Reserve Bank, since she was not targeting the Central Bank in her report, or making specific remedial action against it.