The National Treasury has shredded Public Protector Busisiwe Mkhwebane’s interpretation of the law, arguing that she failed to recognise the constitutional independence of the South African Reserve Bank (Sarb).
The Treasury’s council advocate Tembeka Ngcukaitobi argued that Mkhwebane misunderstood the fundamental relationship between the government and CIEX, adding that the justification of government “was perfectly rational”.
He said the Public Protector’s jurisdiction was limited by maladministration.
“In order to protect the very public interest, it was important not to pursue recovery. The Public Protector misunderstood the fundamental relationship between government and CIEX,” Ngcukaitobi told the North Gauteng High Court earlier today.
Ngcukaitobi said Mkhwebane failed to apply her mind to the question of competency in reopening the case and instructing the Special Investigating Unit (SIU) to re-open its investigation into the Bankorp bailout.
He also highlighted that Mkhwebane withheld certain documents from the National Treasury, saying that those documents were not even “significant,” which included two additional CIEX reports.
Ngcukaitobi said the Treasury could only conclude that the reports were withheld for improper reasons because if they were proper reasons ,they would be forthcoming from the Public Protector.
Meanwhile on Wednesday, senior council for the Sarb advocate David Unterhalter told the court that the Public Protector did not only act partially and procedurally unfair but also acted outside her ambit as it was stipulated in the two-year rule.
He said she failed to prove as it was required by the Public Protector Act for her to exercise discretion in taking up an investigation of an incident that happened more than the two prescribed years.
The judgment in the matter has been reserved until January 2018.