“We will be approaching Parliament requesting them to review her actions and call her to account,” says OUTA COO Ben Theron.
Friday’s judgment, by a full bench of the Pretoria High Court, set aside the remedial action in the Public Protector’s report from June 2017 that, arising from the CIEX report, Absa Bank should repay R1.125 billion to the South African Reserve Bank (SARB) for an apartheid-era transaction.
“We have not been impressed by the Public Protector’s conduct since her early days and this particular judgment sends a clear message that advocate Mkhwebane acted outside of her powers and was biased in her findings,” says advocate Stefanie Fick, OUTA’s Head of Legal Affairs.
“We are concerned at her one-sided reporting and it is extremely worrying when the Public Protector does not apply the basic principles that require her to conduct an in-depth interview with the accused before making her findings.” In this case, she did not consult with Absa before publishing her report as required. Instead, she consulted other parties, including the Presidency and the State Security Agency, and accepted their evidence. She also visited the President’s residence but failed to mention this in her report.
The Pretoria judges were scathing, saying that the Public Protector “does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice”. They said that she “did not conduct herself in a manner which should be expected from a person occupying the office of the Public Protector”, that there was a “reasonable apprehension of bias” and ruled the remedial action recommended in the report to be unlawful. The court took such a dim view of her actions that it took the unusual punitive step of ordering her to personally pay 15% of the SARB costs.
The Public Protector’s report earlier this month on the dishonest Vrede dairy project in the Free State – a project previously exposed as an excuse for looting millions from the state – was discredited by recommending that Free State Premier Ace Magashule set up an investigation into this matter although he himself is implicated in it.
“She has used the excuse of insufficient resources to produce half-baked reports and avoid investigating state capture,” says Theron. “It’s time for her to go.”
OUTA is a proudly South African non-profit civil action organisation, comprising of and supported by people who are passionate about holding government accountable and improving the prosperity of South Africa.