The Public Protector has not offered any defence to charges of illegality‚ irrationality and procedural unfairness regarding her decision to order the amendment of the Constitution to change the mandate of the Reserve Bank.
She would also do well to reflect more deeply on her conduct of the CIEX investigation report and the criticism of her by the Speaker of the National Assembly and the Governor of the Reserve Bank.
The high court in Pretoria made this observation on Tuesday as it set aside her remedial action contained in her report released in June on the lifeboat to Bankorp/Absa in the 1990s.
Busisiwe Mkhwebane directed the chairman of Parliament’s portfolio committee on justice‚ Mathole Motshekga to start a process to amend the Constitution with a view to altering the primary object of the Reserve Bank.
Judge John Murphy said in his judgment on Tuesday that Mkhwebane’s instruction to amend the bank’s mandate was received with dismay and consternation and had immediate negative consequences for the economy and investor confidence.
In view of the immediate economic damage caused by the final report‚ the Reserve Bank approached the court to review and set aside the remedial action.
Absa and the Speaker of the National Assembly also challenged the constitutionality of the remedial action.
The Public Protector did not oppose the Bank’s application.
However‚ remedial action by the Public Protector remains binding until set aside by a court.
Murphy said the remedial action by the Public Protector violated the separation of powers guaranteed in the Constitution.
“The Public Protector’s order (encroaches) unconstitutionally and irrationally on Parliament’s exclusive authority‚” Murphy said.
He said the Public Protector did not have the power to prescribe to Parliament how to exercise its legislative powers.
“She has no power to order an amendment of the Constitution.”
In her answering affidavit‚ Mkhwebane conceded that the remedial action encroached on the powers of Parliament. However‚ she said her remedial action was a mere recommendation.
“The attempt to pass off the remedial action as a mere recommendation is disingenuous‚” Murphy said.
Murphy was also not happy that Mkhwebane did not defend the rationality of her decision and did not give the Reserve Bank notice that she was considering remedial action that would amend the primary function of the Reserve Bank.
Murphy said it was disconcerting that the Public Protector seemed impervious to criticism‚ or otherwise disinclined to address it.
“A dismissive and procedurally unfair approach by the Public Protector to important matters placed before her by prominent role players in the affairs of the state will tarnish her reputation and damage the legitimacy of her office.”