Hapless Public Protector loses SARB ruling

The legitimacy of the Public Protector’s office and her reputation may be damaged if she takes a dismissive or procedurally unfair approach as she has done in the matter regarding the South African Reserve Bank (SARB), Judge John Murphy said.

The judgment, delivered on Tuesday by Justice Cynthia Pretorius on behalf of Murphy, sets aside Public Protector Busisiwe Mkhwebane’s remedial action.

According to a report issued by the Public Protector’s office in June, which was based on an investigation into the apartheid-era Bankorp bailout, Mkhwebane ordered that the Reserve Bank’s constitutional mandate to protect the currency be changed instead to ensure the socio-economic well-being of citizens and the achievement of socio-economic transformation.
Mkhwebane also ordered the Reserve Bank and the chairperson of the portfolio committee on justice and correctional services to submit an action plan before August 18. This has also been set aside.

In his judgment, Murphy said that it is “disconcerting” that Mkhwebane seems “impervious” or “disinclined” to address criticism of her conduct during the investigation.

Murphy acknowledged that the Public Protector has a difficult task and is expected to deal with complex and challenging maters with limited resources and without the “benefit of rigorous forensic techniques”. This would make it easy to make errors in informal alternative dispute resolution processes.

But Murphy added that the Public Protector is the “constitutionally appointed custodian” of legality and due process in the public administration. “She risks the charge of hypocrisy and incompetence if she does not hold herself to an equal or higher standard than that to which she holds those subject to her writ,” he said.

“A dismissive and procedurally unfair approach by the Public Protector to important matters placed before her by prominent role players in the affairs of state will tarnish her reputation and damage the legitimacy of the office.”

Murphy said the Public Protector should reflect “more deeply” on her conduct during this particular investigation, and she should consider the criticism made by the SARB and Parliament.

Professor Jannie Rossouw, head of the Wits School of Economic and Business Science, said that if the matter had gone any other way, it would have been a “constitutional crisis”. “From that perspective it is a very positive judgment,” he said.

‘Maybe she should just resign’

The judgment also raises questions on whether Mkhwebane is fit to hold office, he said. “Maybe she should do the honourable thing and just resign.”

Econometrix chief economist Dr Azar Jammine said the ruling may have damaged the image of the Public Protector, and that some may argue that her days are numbered. He said the ruling showed the strength of South Africa’s institutions and the judiciary.

A different judgment would not have been viewed favourably by ratings agencies, he said.

By Lameez Omarjee for News24

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