Regulator slams Mkhwebane over ‘biased’ report, heads to high court

The Financial Sector Conduct Authority (FSCA) has filed papers to review and set aside a report which it contends was conducted in bad faith by Public Protector Busisiwe Mkhwebane after she made findings of impropriety and maladministration against it.

The report was released on March 28. The complaint was brought by EFF leader Julius Malema and related to the nomination and recommendation for appointment of curators for pension funds.

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Malema alleged that then executive officer Dube Tshidi improperly appointed Anthony Mostert as the curator of several pension funds that had fallen victim to a fraudulent scheme, known as the Ghavalas scheme.

The FSCA, formerly known as the Financial Services Board, filed papers in the High Court in Gauteng.

In court papers filed on Thursday, the FSCA wants the report to be reviewed and set aside, and declared constitutionally invalid for lack of jurisdiction.

The FSCA wants the court to decide if the costs of the application - to be paid on an attorney-client scale - should be covered by Mkhwebane in her personal capacity or in her official capacity.

"The review is sought on the basis that it is immediately apparent from the report that the PP’s findings and conclusions are entirely unreasonable," it said in a statement on Friday.

"It is also our view that 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."

In her report, the Public Protector made various findings against Tshidi - who remains a member of the transitional committee of the FSRA - in his capacity as the Executive Officer of the FSB.

"The Public Protector found, inter alia, that I had acted improperly in the nomination of Mr Antony Louis Mostert's role as a curator and the appointment of his law firm to litigate on behalf of the pension funds under his curatorship; that I had misled the Minister in briefing him on replies to Parliamentary questions concerning Mostert's curatorships; and that I had otherwise abused my position and acted improperly and irregularly in the performance of my duties," wrote Tshidi in his founding affidavit.

"It is immediately apparent from the report that the conclusions drawn about my conduct and the findings made against me are entirely unreasoned."