Public Protector’s ABSA bailout report set aside

The Public Protector’s Bankorp-CIEX report, where ABSA was ordered to pay R1.125-billion, was set aside on Friday by the Pretoria High Court.

In a devastating ruling to the protector the court set aside her report, as well as the remedial action she recommended and ordered her to personally pay some of her opponents’ legal costs.

Justice Cynthia Pretorius in handing down judgment ordered Mkwebane to pay 15% of the Reserve Bank’s costs in her personal capacity. The rest of the 85% will be paid by her office. Her office also has to pay the costs of ABSA on an attorney and client scale, including the costs of three counsel.

The case had seen Public Protector Busisiwe Mkhwebane and the South African Reserve Bank (SARB) face off in court.

The Bankorp-CIEX matter was heard at the North Gauteng High Court in December over three days before a full bench of judges including Pretorius, Judge Nomonde Mngqibisa-Thusi and Judge Dawie Fourie.

It relates to the report Mkhwebane released in June, where her findings called for ABSA to repay R1.125-billion for a lifeboat provided to Bankorp by the Reserve Bank during the apartheid era. Both the SARB and ABSA had filed court applications to have the court review the report and set it aside. The SARB particularly sought a declaratory order that Mkhwebane abused her powers.

During the court proceedings Gilbert Marcus SC for ABSA, argued that Mkhwebane failed to adhere to procedural fairness. Mkhwebane had refused ABSA’s request meet with her prior to the publication of the final report. He also said that she met with Black First Land First (BLF), which was a strong opponent of ABSA and took the stance that ABSA should repay the debt.

In response, Mkhwebane’s lawyer Paul Kennedy SC had argued that if the court granted the declaratory order it would prepare the ground for the Public Protector to lose her job. – Fin24

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Yolandi Groenewald
Yolandi Groenewald
Yolandi Groenewald is a South African environmental reporter, particularly experienced in the investigative field. After 10 years at the Mail & Guardian, she signed on with City Press in 2011. Her investigative environmental features have been recognised with numerous national journalism awards. Her coverage revolves around climate change politics, land reform, polluting mines, and environmental health. The world’s journey to find a deal to address climate change has shaped her career to a great degree. Yolandi attended her first climate change conference in Montreal in 2005. In the last decade, she has been present at seven of the COP’s, including the all-important COP15 in Copenhagen in 2009. South Africa’s own addiction to coal in the midst of these talks has featured prominently in her reports.

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