Mkhwebane’s credibility suffers another blow as FSCA takes her on

Public Protector Busisiwe Mkhwebane faces yet another court battle – and if her findings keep being overturned, her office could lose any remaining semblance of credibility, according to an expert.

Independent political analyst Ralph Mathekga said yesterday the latest challenge to Mkhwebane’s 2018 report into the Financial Services Board (FSB) was likely to open the “floodgates”.

The Financial Sector Conduct Authority (FSCA) has filed papers in the High Court in Pretoria, requesting her report and findings be set aside. The FSCA said the review was sought on the basis that Mkhwebane’s findings were “completely unreasonable”.

“The manner in which she 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,” the FSCA said.

Mkhwebane’s fitness to hold office has also been questioned by political parties.

In the FSCA report, she found former FSCA executive officer Dube Tshidi was involved in “maladministration, abuse of power and improper conduct” and there were “systematic corporate governance deficiencies” at the FSCA.

Mathekga said: “In principle this court challenge should not be an issue. But if you have had many successful reviews that have turned down your findings in a short space of time, it leads to questions of credibility of yourself and your office.

“In this case, the FSCA has found the court challenge doable. It is a matter of concern that those found wanting by the public protector find it easy to successfully challenge her in court.”

Mkhwebane has faced several reviews of her findings since taking office. Her most notable legal losses include:

• The High Court in Pretoria set aside her report on the Gupta-linked Vrede dairy farm project, declaring it invalid.
• The same court set aside her recommendation that the apartheid-era loan the SA Reserve Bank (Sarb) gave to Bankorp (now part of Absa) be repaid.
• The court earlier ruled against the report’s finding that the constitution be amended to modify Sarb’s mandate. It found she did not act impartially.
• She is facing a challenge from Public Enterprises Minister Pravin Gordhan and former SA Revenue Service senior officials Ivan Pillay and Oupa Magashule against her report on an early pension payout made to Pillay.

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