Earlier in the day Reserve Bank advocate David Unterhalter told the high court in Pretoria it “would be for the other branches of government, the legislature in particular” to decide what to do with a court declaration that Mkhwebane had abused her office.
The Reserve Bank has argued that the court is obliged to issue such a declaration because Mkhwebane had breached the Constitution in her conduct around in investigation into the apartheid-era bailout of Bankorp, later acquired by Absa.
The reference to Parliament “clearly reveals that what the Reserve Bank is clearly after is not just simply an attack on the integrity of the public protector,” said Mkhwebane’s advocate Paul Kennedy, but that it wants to use the court “to prepare the ground for presumably the removal of this individual who occupies the position of public protector.”
“The court should not be part of such a game or strategy or approach,” said Kennedy.
Absa is challenging what it believes is Mkhwebane’s intention that R1.125-billion should be claimed from it, and finance minister Malusi Gigaba has argued that her entire Bankorp report should be thrown out because it is fundamentally flawed.
The Reserve Bank, however, has gone further and asked for a punitive personal cost order against Mkhwebane for what Unterhalter called false and misleading statements under oath, “sins of omission” in the conduct of litigation, and disrespect of the court and its processes.
This was the kind of disgraceful conduct that warrants those who hold public office being censured in a way that counts, which is you learn the consequences of playing fast and loose with the law and playing fast and loose with the courts; and that is you feel it in the pocket” said Unterhalter.
Such an order from the court could serve as the basis of an inquiry into Mkhwebane’s fitness to hold office.
But Kennedy argued that the Reserve Bank was bringing an entirely new case under the guise of a review of the Bankorp report, which he described as “a major attack, an unwarranted and most unfortunate attack”.
“What seems to be the objective… is to try and use this as a springboard to, as it were, leave it the legislature but clearly with the hopes that the legislature is going to pick up its cudgels and then remove her,” said Kennedy.
He described this as opportunistic, inappropriate, unjustified, and unfounded.
Kennedy also turned some of the the Reserve Bank’s own arguments back on it. The Bank told the court it was inappropriate for a fellow constitutional body to undermine it; this went for the Bank undermining the public protector too, said Kennedy. Likewise, the Bank said that Mkhwebane was undermining trust in the financial system by gunning for the Bank, but the Bank was itself seeking an order that would undermine faith in Mkhwebane’s office, he held.
Instead of giving the Reserve Bank the order it sought, Kennedy said, the court should accept that Mkhwebane’s heart had been pure, no matter how many mistakes she may have made.
It was possible to infer from the evidence, Kennedy conceded, Mkhwebane had tried to cover up meetings with the Presidency that she was ashamed of — “but there are other possibilities as well.”
Similarly, he said, Mkhwebane may have tried to find reasons to justify her report after the fact, in an impermissible manner. “Does that show a definite abuse of power? No.”
“The fact that somebody fails to meet a high standard does not not mean, necessarily or logically, that there was abuse of power,” Kennedy said.
The hearing is expected to wrap on Wednesday afternoon or during the course of Thursday morning.