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.