Public Protector Busisiwe Mkhwebane File picture: Mike Hutchings/Reuters

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Pretoria -  The Public Protector's remedial action that proposed amendments to the South African Reserve Bank's mandate has been set aside by the high court in Pretoria.

The obligation placed upon the Chairperson of the Portfolio Committee on Justice and Correctional Services and on the SARB to submit an action plan to Public Protector Busisiwe Mkhwebane in relation to the remedial action, was also set aside.

Judge John Murphy slapped Mkhwebane’s office with the legal costs.

The South African reserve Bank (SARB) approached the court for an urgent order setting aside the remedial action called for by Mkhwebane in her report.

The report followed an investigation and a preliminary report by the public protector into a complaint about the alleged failure by government in 1999 to implement the recommendation of a covert UK  based asset agency, CIEX, suggesting that government recover monies paid by the Reserve Bank to Bankorp.

The funds were provided to Bankorp between 1985 and 1995 by the Reserve Bank acting as a lender.

In her report Mkhwebane called on the chairperson of the portfolio committee on justice to take certain steps to amend the constitution to alter the constitutional mandate of the Reserve Bank.

Mkhwebane initially defended her remedial action on changes to the bank's mandate, but later retracted and decided not to challenge the bank's court bid.

Judge Murphy said in his judgment that the public protector’s explanation and “begrudging” concession of unconstitutionality offer no defence to the charges of illegality, irrationality and procedural unfairness.

“It is disconcerting that she seems impervious to the criticism, or disinclined to address it. This court is not unsympathetic to the difficult task of the public protector. She is expected to at times deal with complex and challenging matters with limited resources and without the benefit of rigorous forensic techniques.”

“It is easy to err in informal alternative dispute resolution processes. However, there is no getting away from the fact 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,” the judge said.

He added that 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.

“She will do well to reflect more deeply on her conduct  of this investigation and the criticism of her by the Governor of the Reserve Bank and the Speaker of Parliament,” the judge said in the conclusion of his judgment.

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