After getting wrong the law and the facts, public protector Busisiwe Mkhwebane outsourced the process of trying to justify a crucial report, Absa told the high court in Pretoria on Tuesday morning.
Then she plagiarised that justification.
“It is difficult to be polite about what the public protector has done here,” Absa’s advocate Gilbert Marcus told the full bench hearing a challenge by Absa and the Reserve Bank. “If this were a first year university student they would be disciplined for plagiarism.”
The two banks are seeking to overturn Mkhwebane’s report into the late 1990s investigation by the UK-based Ciex into an apartheid-era bailout of Bankorp, which was later acquired by Absa. Mkhwebane has abandoned an attempt in that report to rewrite the Constitution to change the Reserve Bank’s mandate, but has stuck to her assertion that somebody owes the government R1.125-billion.
Marcus handed the court a schedule prepared by Absa that lists 23 instances in which Mkhwebane stated what were supposedly her own arguments and justifications in an affidavit in the matter. Instead those had been drawn from the work of University of the Witwatersrand economist Tshepo Mokoka, Absa said, in seven instances verbatim.
Mkhwebane had effectively given the court the impression that her independent conclusions had been corroborated by an outside expert, said Marcus, but this turned out to be false.
“It is at best grossly misleading, at worst … perhaps I should just leave it at putting the best possible spin one can on it,” he said.
The submission was the culmination of a morning in which Marcus suggested Mkhwebane had been disingenuous and accused her of assuming authority even God would shy away from.
Mkhwebane had demonstrated “a profound misunderstanding of the requirements of procedural fairness” Marcus said, and discarded principles said to “go back to the Garden of Eden” in reaching judgment based on one side of an argument.
And in at least two instances Mkhwebane has tried to create loopholes to circumvent legal limitations on her considerable powers, Absa contended, to reach back in time before the creation of her office and to override the doctrine of the prescription of debt.
Even so Absa asked only for a punitive cost order against Mkhwebane’s office rather than the cost order against her personally that the Reserve Bank has said it would argue for.
The Reserve Bank is expected to start its arguments on Tuesday afternoon, with Mkhwebane’s counsel likely responding during the course of Wednesday.