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Judge: Mkhwebane risks being labelled incompetent, a hypocrite

Judge John Murphy noted that the Public Protector’s preliminary report was not issued to interested parties to comment on before the final remedial action was ordered.

FILE: Public Protector Busisiwe Mkhwebane. Picture: EWN.

PRETORIA - The High Court has found that the Public Protector's conduct in the Bankorp lifeboat investigation was procedurally unfair and she has tarnished the reputation of her office.

This was among the findings handed down in Pretoria in the Reserve Bank's application to review Busisiwe Mkhwebane's remedial action which amended the Central Bank's mandate.

Mkhwebane's report, which was released in June, compelled Parliament to amend the Constitution.

While the advocate initially defended her report, she withdrew her opposition to the Reserve Bank's review application.

Judge John Murphy noted that the Public Protector’s preliminary report was not issued to interested parties to comment on before the final remedial action was ordered.

He says nowhere in the preliminary report did Advocate Mkhwebane disclose that she was considering remedial action that would amend the primary object of the Reserve Bank.

The court held that the advocate amended the scope of the investigation and the remedial action without notice to any person likely to be affected.

Murphy found that in this regard, Mkhwebane failed in her duty which resulted in severe damage to the economy and the reputation of her own office.

The judge says the Reserve Bank was denied an opportunity to explain the importance of its mandate, which meant the remedial action was insufficiently informed.

Judge Murphy says Mkhwebane’s concession that her remedial action was unconstitutional offered no defence to the argument that it was also illegal, irrational and procedurally unfair.

Murphy found it disconcerting that Mkhwebane seems impervious to the criticism levelled against her.

The judge says the Public Protector is the constitutionally appointed custodian of legality and due process in the public administration.

He warns that Mkhwebane risks being labelled a hypocrite and incompetent if she doesn't hold herself to an equal or higher standard than those she investigates.

(Edited by Winnie Theletsane)