ANALYSIS
The remarkable supplementary affidavit by the SA Reserve Bank (SARB) poses a number of pointed questions, with the independence of Public Protector Busisiwe Mkhwebane chief among them.
In the court papers, filed under the name of Johannes de Jager, general counsel at the SARB, it is revealed that Mkhwebane met both representatives of the Presidency and the State Security Agency (SSA) before she finalised her final report on her office's investigation into the controversial rescue package for the now defunct Bankorp. This wasn't disclosed in her final report and the SARB now want to see the transcripts of those meetings.
Disturbingly, according to (incomplete) notes provided to the SARB by the public protector, Mkhwebane discussed the "vulnerability" of the SARB with the spooks at the SSA and changes to the bank's mandate with the presidency.
At paragraph 24:
The meeting with the Presidency on 7 June 2017 took place after the Reserve Bank had responded to the public protector's preliminary report . . . by this stage the public protector's aim was to amend the Constitution to deprive the Reserve Bank of its independent power to protect the value of the currency . . .
The SARB believes that Mkhwebane is not as impartial as the office demands and that her actions in meeting the Presidency and the SSA should be called into question. At paragraph 26, De Jager says:
The meeting was convened between the Presidency and an institution, the public protector, which is constitutionally required to be independent and to conduct its investigations without fear, favour or prejudice.
He goes further when discussing the SSA meeting, during which Mkhwebane made note of a discussion around the SARB's weaknesses. At paragraph 31, De Jager refers to the note and says:
In this note, there is a section dealing with the Reserve Bank in which the following question is posed: "How are they vulnerable?"
De Jager asks in the affidavit why the SARB's perceived "vulnerability" is at all relevant to the public protector's investigation into the Bankorp rescue package. At paragraph 33, he draws his own conclusions:
The fact that this topic was even discussed with the SSA indicates that the public protector's investigation was aimed at undermining the Reserve Bank. It also indicates that by May 2017 the investigation had turned from the question whether the government had implemented the CIEX Report to an attack on the Reserve Bank.
And in the following paragraph:
The attack is evidence of bias or at least a reasonable apprehension of bias on the part of the public protector. It also shows that her remedial action had an ulterior purpose.
The SARB is now asking for the full details of these two meetings to be made available as part of the court record. The high court earlier this year struck Mkhwebane's findings that the SARB's mandate be changed from her report into the Bankorp package. The whole report, however, is still the subject of a court challenge.
The affidavit is a bombshell. It creates the distinct impression that Mkhwebane –- who was earlier accused of being a spy for the SSA –- worked hand in glove with President Jacob Zuma's office and the SSA, run by David Mahlobo, Zuma's right- and left-hand man. The meetings referred to in the affidavit occurred against the backdrop of a campaign at the time that questioned the independence of the SARB and decried the existence of private shareholders in the bank. This prompted Lesetja Kganyago, the SARB governor, to go on the offensive, publicly explaining the role of the bank in public and defending its mandate.
The affidavit is a bombshell.
The meetings were also held after the removal of Pravin Gordhan as minister of finance, which led to fears that the SARB might be the next target of so-called rent-seekers and the state-capture network. Given the affidavit, the cynics who believed that the SARB was a target might just have a case.
Insiders at the public protector believe there is regular "consultation" between Mkhwebane and the SSA. This is part of an "ongoing relationship" with the SSA, where she once worked as an analyst. The SARB's affidavit is clearly an effort to safeguard the independence of the institution by putting Mkhwebane's actions under the spotlight. The SARB is of the firm belief that there was no reason to meet with either the Presidency or any security agency.
The SARB believes that Mkhwebane is not as impartial as the office demands.
South Africa is engrossed in the ANC's succession battle, leadership contests and scandal. But the assault on critical state institutions is still in full swing.