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Sarb files affidavit to challenge Mkhwebane’s findings on Bankorp bailout

The South African Reserve Bank says it will seek a costs order against Mkhwebane and a declaratory order from the court that she abused her office.

FILE: Public Protector Busisiwe Mkhwebane during a press briefing. Picture: Kgothatso Mogale/EWN

JOHANNESBURG - The South African Reserve Bank (Sarb) has filed a replying affidavit to challenge the Public Protector’s findings over an apartheid-era bailout of a bank bought by Absa.

Busisiwe Mkhwebane insists that Absa benefited from the bailout of Bankorp in the 1980's and that the 2002 expert panel led by Judge Dennis Davis simply got it wrong.

The reserve bank says it will seek a costs order against Mkhwebane and a declaratory order from the court that she abused her office.

It argues in papers filed on Monday, that the Public Protector’s answering affidavit is a reinvented justification of her report.

The reserve bank wants the High Court to grant a declaratory order against the Public Protector stating that she abused her office.

The bank argues that Mkhwebane’s report relies on analysis of the financial assistance given to Bankorp by an economist who was appointed after the report was published.

In the replying affidavit lawyers representing the reserve bank say the Public Protector justified her remedial action on the basis that the law of prescription could be overlooked and this is a flawed rationale.

It also argues that Mkhwebane has failed to address the very serious accusations that she is biased against the reserve bank and pursued an ulterior purpose in her investigation.

Last month, Eyewitness News revealed that Advocate Busisiwe Mkhwebane has pleaded with the Pretoria deputy judge president to postpone the Bankorp-CIEX review application until next year, two week after legal team dumped her.

The request was submitted despite the Public Protector’s office telling EWN that the withdrawal of her legal team will have no bearing or negative impact on the matter.

Absa, the Treasury and the Reserve Bank have all taken Mkhwebane’s controversial report into the so-called Bankorp apartheid-era lifeboat on review.

The remedial action which ordered Parliament to amend the central bank’s constitutional mandate has already been set aside.

The Public Protector’s legal team has told the deputy judge president that there are simply too many documents - about 7,000 in total - to read through and file an answering affidavit by the deadline, which is Monday.

While the matter was set down to be heard over three days in December, Mkhwebane wants to postpone her deadline to file papers until the 29 January.

Absa has rejected Mkhwebane’s request, saying in correspondence that the bank filed its founding affidavit more than two-and-a-half months ago.

It also criticised the Public Protector for the piecemeal fashion in which she delivered the record of decision to the applicants, which did not affect their ability to meet the court set deadlines.

Additional reporting by Barry Bateman.