A full bench of the High Court in Pretoria has delivered a scathing judgment against Public Protector Busisiwe Mkhwebane, saying she did not fully understand her constitutional duty to be impartial and perform her functions without fear, favour or prejudice.

Judges Cynthia Pretorius, Nomonde Mngqibisa-Thusi and Dawie Fourie set aside the public protector’s finding that R1,125 billion must be recovered from Absa Bank for the Bankorp bailout in the mid-1980’s.

The court ordered Mkhwebane to pay 85 percent of the costs of Absa and the South African Reserve Bank (Sarb) in her official capacity, but to personally pay 15 percent of the costs, also on a punitive scale for the “unacceptable way” in which she conducted her investigation and her persistence to oppose the application to the end.

Absa turned to the court after Mkhwebane in June last year issued a controversial report in which she found that the government had improperly failed to recover R3,2 billion from Bankorp/Absa and that the South African public was prejudiced by the conduct of the government and the Sarb.

The report dealt with the financial assistance provided by the Sarb to Bankorp, which was later bought by Absa.

Judge Pretorius severe criticised Mkhwebane for engaging with the Presidency and the State Security Agency without affording a similar opportunity to Absa or the Reserve Bank before issuing her report.

The meetings were not disclosed in her report and only became known when she filed her answering affidavit in the application.

The Judges said a reasonable, objective and informed person, taking into account all of these facts, would reasonably have an apprehension that the public protector would not have brought an impartial mind to bear on the issues.

“The Public Protector did not conduct herself in a manner which should be expected from a person occupying the office.

“She did not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law and that a higher standards is expected from her. She failed to explain her actions adequately,” the judges said.

They found that the remedial action in the report was unlawful and that there was a reasonable apprehension of bias, adding that it would be untenable to remit the report back to the public protector.

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