Public Protector Busisiwe Mkhwebane is under pressure from Parliament and the ANC. Picture: Bongani Shilubane
Cape Town - The ANC has backed Parliament’s decision to mount a legal challenge against Public Protector Busisiwe Mkhwebane’s report into the R1 billion bail-out the Reserve Bank gave Absa and its predecessor, Bankorp.

In her report, Mkhwebane found Bankorp had unduly benefited from the transaction, which was money misappropriated during the apartheid era and given out as a lifeboat to the bank.

Mkhwebane ordered that Parliament amend the constitution to change the mandate of the Reserve Bank.

Parliament has become the latest affected party to indicate that it would take the recommendation on judicial review, after Absa also announced it intended turning to the courts.

On Friday ANC spokesman Zizi Kodwa said Parliament had taken a correct decision to challenge the decision in court.

“That decision by Parliament is correct because the findings of the public protector are binding,” Kodwa said.

Other parties agreed, saying Mkhwebane could not order Parliament to amend the constitution.

This followed Mkhwebane’s decision that the chairperson of the portfolio committee on justice and correctional services, Mathole Motshekga, should initiate a process to amend the constitution.

She wants Parliament to strip the South African Reserve Bank of its powers.

But parties say the public protector cannot direct Parliament how to run its business.

Constitutional law expert Professor Pierre de Vos of the University of Cape Town also said Mkhwebane was wrong in directing Parliament to amend the constitution.

He said Parliament would win the case in court.

“It is difficult to say with certainty what the outcome of a case will be. But in this case I will say with certainty the public protector will lose the case because the public protector cannot order Parliament to amend the constitution,” said De Vos.

He said in some cases people do not understand the law and get things wrong, but this was as clear as daylight.”

Parliament said Mkhwebane wanted to usurp the powers of the institution by directing it how to do its work.

Spokesman for Parliament Moloto Mothapo said they were taking Mkhwebane to court to get her finding reversed.

“Parliament believes that the remedial action, which is binding in terms of the law, usurps the powers of the institution under the constitution. Section 57 of the constitution empowers the Assembly to control its internal arrangements, proceedings and procedures,” said Mothapo.

“Parliament will accordingly initiate a court application to have this remedial action set aside on the basis of its unconstitutionality,” he added.

The DA and African Christian Democratic Party backed the decision to take the report on review.

Cheryllyn Dudley of the ACDP said Mkhwebane wanted to usurp the powers of Parliament by directing it how to conduct its business. She said the constitution was clear on the powers of Parliament.

Political Bureau