Public Protector Busisiwe Mkhwebane suffered another major setback on Friday when a full bench of the High Court in Pretoria set aside her finding that R1.1 billion must be recovered from Absa Bank.
Judges Cynthia Pretorius, Nomonde Mngqibisa-Thusi and Dawie Fourie did not mince their words in a 73-page judgment, in which they found Mkhwebane was biased and the remedial action in her June 2017 CIEX report was unlawful.
They said Mkhwebane did not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice.
“The public protector did not conduct herself in a manner which should be expected from a person occupying the office. She 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,” they said.
The judges directed the Special Investigating Unit to approach the president to amend a government proclamation to recover R1.1 billion from Absa, which she had said the Reserve Bank had unlawfully given to Bankorp (later bought by Absa) in the mid-1980s.
The court also ordered her to pay 85% of Absa and the Reserve Bank’s costs on a punitive scale in her official capacity, and 15% as a sign of the court’s displeasure with the “unacceptable way” she conducted her investigation.
The judges severely rebuked her for engaging with the Presidency, the State Security Agency and even Black First Land First, which had embarked on a campaign of intimidation against Absa, without giving a similar opportunity to Absa or the Reserve Bank before issuing her report.