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Parliament to seek court order to set aside Public Protector action

Jun 22 2017 21:19
Matthew le Cordeur

Cape Town - Parliament has joined Absa and the South African Reserve Bank (SARB) in heading to court to get Public Protector Busisiwe Mkhwebane’s remedial action set aside, as they believe it is unlawful.

Parliament said in a statement on Thursday that it will “initiate a court application to have this remedial action set aside on the basis of its unconstitutionality”.

Mkhwebane’s report into “allegations of maladministration, corruption, misappropriation of public funds and failure by the South African government to implement the CIEX report and to recover public funds from Absa Bank” was broadened this year to include a controversial remedial action.

READ: Governor strikes back: SARB has duty to protect rand

On Monday, she ordered the Portfolio Committee on Justice and Correctional Services to initiate a process to change the Constitution “in pursuit of improving socio-economic conditions of the citizens of the republic”.

Mkhwebane said they must amend a paragraph in the Constitution that removes reference to “protect the value of the currency”.

In response, Parliament said: “The Public Protector’s remedial action essentially instructs a committee of Parliament to start a legislative process, prescribes to the institution on the policy that will inform the bill, the wording of the amendment of the Constitution’s section 224 and directs what constitutional provisions must inform the legislative process of the bill.

“Parliament believes that the remedial action, which is binding in terms of the law, usurps the powers of the institution under the Constitution. Section 57 of the Constitution empowers the Assembly to control its internal arrangements, proceedings and procedures.”

The SARB said on Tuesday that it was advised to bring urgent review proceedings to have the remedial action set aside. “The Reserve Bank has resolved to do so.

"The Reserve Bank has consulted its legal team and has been advised that the remedial action prescribed by the Public Protector falls outside her powers and is unlawful.”

Absa said on Wednesday it was approaching the court “due to numerous misrepresentations and factual inaccuracies which form the basis of the Public Protector's findings, and what we submit are the irrational and unreasonable legal conclusions in the report. The misconceptions and inaccuracies in the report are profound and damaging to Absa’s reputation.

“We have accordingly instructed our lawyers to immediately prepare an application to the High Court to have the report and its remedial actions set aside.

“We deny that Absa received R1.125bn by way of unlawful assistance and we firmly maintain our position that all of Absa’s obligations to the South African Reserve Bank were met in full by October 1995,” said Absa.

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