Court throws out yet another Public Protector report

Public Protector Busisiwe Mkhwebane. Picture: Neil McCartney

The report on the FSCA set aside and declared constitutionally invalid for ‘lack of jurisdiction’, but Mkhwebane’s office emphasised that it had been ‘reviewed and set aside by agreement’.

Public Protector Busisiwe Mkhwebane’s controversial report on the Financial Sector Conduct Authority (FSCA) has become the latest to be thrown out in court.

Judge Nicolene Janse van Nieuwenhuizen, sitting in the High Court in Pretoria, reviewed and set aside the report and declared it constitutionally invalid for “lack of jurisdiction”.

Mkhwebane’s investigation into the FSCA came on the back of a complaint lodged by Economic Freedom Fighters (EFF) leader Julius Malema in 2017.

It centred on historic allegations of “maladministration, abuse of power and improper conduct” against the former chief executive of the Financial Services Board, advocate Dube Tshidi, as well “systemic corporate governance deficiencies”.

In her resultant report, released in early 2018, Mkhwebane made various adverse findings against Tshidi, including that he had misled parliament and the FSCA.

The FSCA subsequently launched a review application in June last year, saying at the time: “The manner in which she [Mkhwebane] conducted her investigation renders the findings reviewable for perceived bias, bad faith and/or ulterior motives. The only other explanation for these failures is gross incompetence and negligence.”

Said Janse van Nieuwenhuizen: “The report is by agreement reviewed and set aside. Consequently there is no report to be remitted back.”

The FCSA said in a statement on Thursday it was satisfied with the outcome.

The public protector’s spokesperson, Oupa Segwale, emphasised that the report had been reviewed and set aside by agreement.

“In other words, the public protector did not oppose the application to have the report reviewed and set aside,” he said.

“This was because new information came to light subsequent to the issuing of the report, pointing to certain missteps in the investigation process”.

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