The Constitutional Court has given the Reserve Bank the right to argue that Public Protector Busisiwe Mkhwebane ‘abused her office’ with her disastrous investigation of the bank, in a case Business Day suggests will almost certainly affect Mkhwebane’s battle to remain in her position.

‘The Public Protector failed to live up to the standards required of her office during her investigation. She conducted a partisan investigation, which was aimed at undermining the Reserve Bank,’ the bank’s lawyers state in documents before the Constitutional Court. They claim Mkhwebane ‘also fell egregiously short of her duties’ during the litigation that ultimately saw her office’s report on the apartheid-era bailout, given by the central bank to Bankorp, being overturned.

On 27 November, Mkhwebane’s legal team will ask the court to reverse the estimated R900 000 legal costs bill she was ordered to pay personally by the Gauteng High Court (Pretoria), which found she did not fully understand her constitutional duties as Public Protector when she conducted her Bankorp investigation.

Business Day says Mkhwebane wants the Constitutional Court to rule that the costs order given against her ‘impacts adversely and directly on the exercise by the Public Protector‚ a Chapter Nine institution‚ of her constitutional power‚ obligations and functions without fear‚ favour or prejudice’.

She argues that the Constitutional Court must ‘set aside’ the High Court’s findings ‘that there is a reasonable apprehension that I was biased’ and ‘that I do not fully understand my constitutional duty...’. But the Reserve Bank is adamant that these findings are legally justified.

These failings are not innocent errors or mistakes. They form a consistent pattern of obfuscation and avoidance. Both these orders are designed to vindicate the Constitution when its duties have been defied in such a flagrant manner.’

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