High Court sets aside Mkhwebane’s R1.125 bn ABSA order

The High Court in Pretoria on Friday set aside Public Protector Busisiwe Mkhwebane’s controversial findings and remedial action ordering ABSA bank to pay R1.125 bn in what she said was accumulated interest for unpaid apartheid era bailout loans.

The public protector had concluded that the SA government and the SA Reserve bank “did not protect the interest of the public” in what she said was an “irregular and unlawful ‘lifeboat’ granted to Bankorp Ltd/ABSA Bank”.

In a scathing judgment setting aside the ruling, three judges found that Mkhwebane “did not conduct herself in a manner which should be expected from a person occupying the office of public protector”.

The criticism was centred around the secret meetings Mkhwebane had with the Presidency which she did not reveal to ABSA.

The bank sought the court’s intervention to set aside the public protector’s findings and remedial action citing a breach of the constitution in that she did not act independently.

The three judges, C Pretorius, NP Mngqibisa-Thusi and DS Fourie concurred. They found that Mkhwebane did “not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law and that a higher standard is expected from her”.

While the judges said the court was reluctant to encroach unnecessarily on the preserve of the public protector, they said: “In view of our conclusion regarding the unlawfulness of the remedial action, as well as the reasonable apprehension of bias, we do not deem it necessary to deal with all other grounds of the review as we found that the public protector was biased and the remedial action should be set aside.”