South Africa Court Finds Public Protector Absa Report BiasedBy
Mkhwebane doesn’t understand her constitutional duty: court
Remedial action against Barclays Africa unit was set aside
South Africa’s anti-graft ombudsman doesn’t understand her constitutional duty and was biased in her report on an acquisition by a unit of Barclays Africa Group Ltd. more than 20 years ago, the High Court said.
The 2017 report said Barclays Africa’s Absa owed the state more than 1 billion rand ($86 million) after it unduly benefited from government support when it bought Bankorp from Sanlam Ltd. after the South African Reserve Bank helped keep the lender afloat in the days before apartheid ended. The Public Protector also proposed changing the central bank’s inflation-targeting mandate, a bid scrapped by the High Court in August.
The remedial action is “unlawful” and “there is a reasonable apprehension of bias,” the Pretoria High Court said Friday in a judgment which set aside Public Protector Busisiwe Mkhwebane’s report. “It transpired that the Public Protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favor or prejudice.”
The court ordered Mkhwebane’s office to pay Absa’s legal costs for the application and said she should cover 15 percent of the central bank’s expenses personally.
Mkhwebane was appointed late in 2016 for a seven-year term, replacing the well-regarded Thuli Madonsela. The Public Protector can be removed from office on grounds of misconduct, incapacity or incompetence, according to the constitution.
“The Public Protector did not conduct herself in a manner which should be expected from a person occupying the office,” the court said. “She did not have regard thereto that her office requires her to be objective, honest and to deal with the matters according to the law and that a higher standard is expected from her. ”
The court said there may be a case for a declaratory order against Mkhwebane.
“I do think her position is at risk, her office has thus far not been able to function properly since she took over,” Shadrack Gutto, a law professor at the University of South Africa, said by phone. “It can be corrected, but she has to be able to appreciate that she needs to focus on what was decided before her.”
— With assistance by Arabile Gumede