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SARB lawyer climbs into Mkhwebane, says she misled, disrespected the court

Dec 06 2017 12:06
Lameez Omarjee, Fin24

Pretoria – Public Protector Busisiwe Mkhwebane’s conduct during the litigation process of the Bankorp-CIEX report was disrespectful to the law and the courts, the counsel of the South African Reserve Bank (SARB) argued on Wednesday.

The hearing continued at the North Gauteng High Court, with the Reserve Bank’s lawyer concluding its arguments, and calling for Mkhwebane to feel punishment in her pocket.

The matter relates to a report Public Protector Busisiwe Mkhwebane released in June where her findings called for ABSA to repay R1.125bn for a lifeboat provided to Bankorp by the Reserve Bank during the apartheid era. Both the SARB and ABSA filed court applications to have the court review the report and set it aside.

The SARB is also seeking a declaratory order that Mkhwebane abused her powers.

David Unterhalter SC for the SARB unpacked the reasoning for the punitive costs sought, and wants the court to consider Mkhwebane’s conduct throughout the litigation process. Unterhalter argued that Mkhwebane’s conduct was “egregious”.

“The Public Protector has, I say this with considerable regret, but has misled the court.

“No one can make false statements before the court,” he said, referring to the Public Protector’s meeting with the Presidency.

Mkhwebane had failed to list one of her meetings with the President in her submissions, and also did not provide an explanation for the meeting. The explanation which was later provided relates to a remedial action to have a commission of inquiry set up by the President.

“With regret, that position cannot be true and cannot be an explanation for what was said at the meeting,” said Unterhalter as the matter of setting up a commission of inquiry had already been dealt with.

“There is grave concern that something occurred in that meeting and a frank account has not been given.”

Disrespecting courts

Unterhalter went on to say that Mkhwebane had failed to be “frank and candid” with the court, which is below the standard of what is required by her office. “The Public Protector herself is a lawyer, highly trained, and cannot blame her legal team for omissions.”

Unterhalter said that her conduct was “disgraceful” and that she must learn the consequences of “playing fast and loose” with the law and with the courts, through punishment in the pocket.

He also listed the example of Mkhwebane failing to meet timelines of the court, having called for a postponement of the hearing.

“She sought postponement at the last minute and withdrew her application at the last minute.” This was disrespectful to the courts and she must pay for the abuse, said Unterhalter.

Reserve Bank governor Lesetja Kganyago and deputy governor Francois Groepe were in attendance, but would not give comment pending the outcome of the case. 

The Public Protector’s counsel Paul Kennedy SC will give replies when court commences after a tea adjournment.

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