Get more Mail & Guardian
Subscribe or Login

Mkhwebane: Final Absa report isn’t final, so can’t be challenged

Public protector Busisiwe Mkhwebane’s legal team on Wednesday told the high court in Pretoria that what had appeared to be — and has to date been treated as — a final report on an Apartheid-era bailout was not, in fact, final.

In which case she did nothing wrong.

In June this year, Mkhwebane put her signature to a report that seemed to suggest that the government must recover R1.125-billion from Absa. She has since said that although she found that money had been unlawfully gifted to Absa, she never actually said it must be recovered from Absa, and so Absa did not have the standing to challenge her finding before the courts.

On Wednesday her advocate Paul Kennedy seemed to take that one step further.

“She doesn’t adjudicate obligations and violation of rights as a matter of final determination,” said Kennedy of Mkhwebane’s findings. 

Instead, Kennedy held, Mkhwebane only ordered the Special Investigating Unit (SIU) to approach the President to reopen a proclamation that would allow it to investigate the matter. Because the SIU had not concluded that investigation yet nothing had been finalised, but Mkhwebane had only “set in motion further steps”.

Asked how that squares with Mkhwebane making both the finding that Absa had received a gift and putting a precise number to that gift, Kennedy said he could not take the point any further.

Because the report is not final, Kennedy said, the issue of prescription of the supposed debt does not arise, because it is not yet clear if any money will be recovered, and if so from whom and by whom. Whether or not the debt is legally recoverable should wait until there is an attempt to recover it.

Similarly, because the report is not yet final, Mkhwebane can not be said to have been unfair in completing it, Kennedy said, because what is fair is relative. Ideally Mkhwebane should, perhaps, have heard Absa and the Reserve Bank before publishing her not-final report, but because it is not final she wasn’t obliged to do so, and the failure is therefor not fatal to the report.

In a brief rebuttal on Wednesday afternoon, Reserve Bank advocate David Unterhalter said Mkhwebane’s approach would put her decisions forever beyond review by the court and that in many respects she was simply wrong. The Reserve Bank, for instance, had been ordered to assist the state in recovering the R1.125-billion Mkhwebane had stipulated, so its position had “irretrievably changed”.

“No matter how contextual one is about these matter, once there is an obligation that is imposed that is an imposition that is clearly adverse,” said Unterhalter. “It’s elementary, it’s basic, it’s unavoidable, and the public protector was simply unfair.”

Absa and finance minister Malusi Gigaba are due to reply on Thursday morning.

Subscribe for R500/year

Thanks for enjoying the Mail & Guardian, we’re proud of our 36 year history, throughout which we have delivered to readers the most important, unbiased stories in South Africa. Good journalism costs, though, and right from our very first edition we’ve relied on reader subscriptions to protect our independence.

Digital subscribers get access to all of our award-winning journalism, including premium features, as well as exclusive events, newsletters, webinars and the cryptic crossword. Click here to find out how to join them and get a 57% discount in your first year.

Phillip De Wet
Guest Author

Related stories


If you’re reading this, you clearly have great taste

If you haven’t already, you can subscribe to the Mail & Guardian for less than the cost of a cup of coffee a week, and get more great reads.

Already a subscriber? Sign in here


Subscribers only

R350 social relief grant not enough to live on

Nearly half of the population in South Africa — one of the most unequal countries in the world — is considered chronically poor.

More top stories

How to game Twitter’s algorithm – and hoodwink journalists

It is possible to convince newsrooms looking for a topical story that something is news when it isn’t, to dangerous effect

We will do better, ANC president Ramaphosa says in corrective...

At the ANC’s manifesto launch, Cyril Ramaphosa promised to reduce unemployment, increase social security, and stamp out corruption in the party

Young and jobless? Apply for one of 287 000 education...

Education department urges young, jobless people to apply for teaching assistant vacancies

Officials implicated in arts council mismanagement will be brought to...

The National Arts Council vows that every cent from the sector’s Covid-19-relief programme will be disbursed to artists, after auditors uncover maladministration

press releases

Loading latest Press Releases…