Public protector Busisiwe Mkhwebane made findings against Absa without pursuing evidence submitted by key witnesses, rendering her entire report on the Bankorp “lifeboat” unusable.
This is the claim made by Absa chief executive Maria Ramos in a supplementary affidavit filed in the Pretoria high court on Thursday. After Absa’s legal team pressed the public protector’s office to submit documents missing from her record of the Ciex investigation, Mkhwebane delivered enough papers to fill two lever arch files on September 11.
But more is still missing.
“It now emerges for the first time that the current public protector was ignorant of the contents of these documents, including interviews with key witnesses,” Ramos said.
The Absa chief executive has accused the public protector of selecting evidence and ignoring other documents in an effort to serve an agenda of her own.
The missing transcripts and documents include meetings and interviews with:
- Billy Masetlha (former state spy boss who co-ordinated the Ciex investigation)
- Judge Eberhard Bertelsmann (a member of the state’s legal team)
- Michael Oatley (an investigator for Ciex)
- Pravin Gordhan (former finance minister)
- Judge Willem Heath (investigated the Bankorp deal)
- Adv Paul Hoffman (the complainant to the public protector)
- Black First Land First
- ANC Women’s League
Why the ANCWL met with the public protector is unclear and so far the organisation has only been mentioned in Absa’s court papers and nowhere else in relation to the Bankorp saga.
Some of the missing evidence that is crucial to the Bankorp affair emerged during Thuli Madonsela’s term as public protector when she began investigating the government’s lack of implementation of the Ciex report. Madonsela interviewed, for example, Masethla – the state spy chief who contracted the Ciex investigation – but Ramos claims that Mkhwebane made no attempt to find the transcript of that meeting with her predecessor or ensure that there was a proper handover.
Mkhwebane’s own counsel advised her that she should send a “letter to the former public protector as to the whereabouts of such documentation”, according to a letter attached to Ramos’s affidavit.
“The public protector thus has no way of knowing whether the conclusions upon which she relies were based upon correct findings of fact because she simply does not know what key witnesses said,” Ramos said.
Madonsela’s findings: Absa shouldn’t pay
In a note on her initial thoughts on the Bankorp lifeboat, Madonsela made the following provisional findings: “Nothing can be done now as it is too late. It would not be lawful, reasonable or fair to recover the prescription and dictates of fairness to current Absa investors militate against any action to recover.”
The note, which Ramos quotes in her affidavit, was sent from Madonsela, shortly before she vacated her position as public protector, to former investigator in the public protector office, Ms Tshiwalule. Madonsela’s provisional findings seemed to be the opposite of Mkhwebane’s: the current public protector found Absa liable to pay back R1.1-billion. However, previous investigations, such as the Judge Dennis Davis investigation, have agreed that Absa paid fair value when it bought Bankorp and did not owe money to the state.
Ramos argues that Mkhwebane ignored Madonsela’s findings even though she did not have the required documentation to do so. Madonsela had worked on investigating the Ciex report since 2011, while Mkhwebane had spent less than a year in office when she released her final report and remedial action.
“As I point out above, even though Ms Mkhwebane did not have access to the core interviews and other documents relevant to the investigation, she nevertheless saw fit to ignore Ms Madonsela’s conclusions,” Ramos said.
“Mkhwebane is grossly incompetent, biased and unfair”
Absa has now accused Mkhwebane of harbouring “what appears to be an ulterior purpose”. That purpose, Ramos elaborates, is to find the SA Reserve Bank, former finance minister Pravin Gordhan, and Absa guilty of misappropriating public funds.
The public protector, Ramos says, handpicked or ignored evidence to suit her own agenda rendering her investigation “grossly incompetent and fundamentally unfair”.
The Reserve Bank filed papers on Monday that accused Mkhwebane of plotting with the Presidency’s legal advisors and the State Security Agency to change its mandate. Ramos takes similar issue with the public protector, asking why the SSA and the presidency were allowed to discuss her remedial action with her when Absa was not. The meetings with SSA and the Presidency advisors took place two weeks before Mkhwebane’s final report was released, according to the Reserve Bank’s papers.
Absa has now made allegations that Mkhwebane was unfair in her investigation and that her remedial action was unreasonable, unauthorised and influenced by an error of law. The bank has asked the court to make an order in line with its findings and proposed that if Mkhwebane continued to oppose its application, it would seek a costs order against her “unlawful conduct”.
Mkhwebane is due to submit court papers on October 23.