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The high court in Pretoria on Friday expressed its displeasure in the way the public protector conducted her investigation into the Absa-Bankorp matter.

It ordered her to personally pay 15% of the costs in the application by the Reserve Bank.

The Reserve Bank‚ Absa‚ the minister of finance and the treasury were successful in their application to review and set aside the remedial action of the public protector’s report on the lifeboat by Absa.

In that report released in June last year‚ the public protector recommended to the Special Investigating Unit (SIU) to reopen and amend a presidential proclamation to recover misappropriated public funds “unlawfully given to Absa Bank in the amount of R1.125 billion”.

In setting aside this remedial action‚ the court said the SIU Act did not make a provision for the SIU to approach the president to reopen and amend a proclamation.

“The SIU is not authorised by statute to do so and neither can the public protector instruct such a unit to perform such a function‚ which it does not have‚” the court said in a judgment written by Judge Cynthia Pretorius‚ with two other judges concurring.

The court noted that both Absa and the Reserve Bank contended that the public protector failed to conduct a fair and unbiased investigation.

They said after publication of her provisional report in January last year‚ the public protector met the presidency and the State Security Agency without affording the banks a similar opportunity.

The court said Mkhwebane did not disclose in her report that she had meetings with the presidency on April 25 and June 7 last year

The court said it was only in the answering affidavit that she admitted the meeting in April but was silent on the June meeting.

“Generally speaking‚ a court will not grant an order for costs to be paid personally where a litigant is acting in a representative capacity.”

The court said Section 5(3) of the Public Protector Act provided for an indemnification with regard to conduct performed in “good faith”.

The court said the public protector had demonstrated that she exceeded the bounds of this indemnification.

“It is necessary to show our displeasure with the unacceptable way in which she conducted her investigation as well as her persistence to oppose all three applications to the end.

It said this was a case where a simple punitive costs order against her in an official capacity would not be appropriate.

“The Public Protector‚ in her official capacity‚ should be ordered to pay 85% of the costs of the application by the Reserve Bank on an attorney and client‚ and the balance of 15% should be paid by the Public Protector in her personal capacity‚” Pretorius said. 

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