From where public protector Busisiwe Mkhwebane sits, the courts are unnecessary. She’s unilaterally granted an application that, in due process, the Black First Land First (BFLF) “movement” had abandoned. Go back to October last year when BFLF filed a notice of motion in the North Gauteng high court.
BFLF sought a court order directing the minister of finance, then Pravin Gordhan, to comply with recommendations of the report from British spymasters CIEX; specifically for Absa to pay the fiscus with interest on proceeds from the R1.15bn bailout by the SA Reserve Bank of Bankorp (merged into Absa) during 1985-1992.
At the time of BFLF’s litigation, the Gupta family had drawn Gordhan into a dispute over the cancellation of its facilities with SA banks. It doesn’t matter whether the timing was coincidental. What does matter is that, once Gordhan had answered on affidavit to the BFLF application, the court heard not another peep from this purported “movement”.
According to Mkhwebane, the minister of finance and the Reserve Bank had acted unlawfully by not recovering monies as per the CIEX report. Her reasoning looks seriously flawed, considering that BFLF did not proceed with its court application.
A coach and horses had been driven through the arguments of BFLF by Gordhan’s answering affidavit. It provided a series of compelling policy, factual and legal reasons that explained why the CIEX recommendations had no status. They were incapable of implementation. That seemed the obvious reason for BFLF having decided to walk from the court, its tail probably between its legs.
Not so fast, however, as the BFLF notice of motion contains a tantalising morsel. It’s the revelation that, in March 2016, BFLF had asked the public protector to investigate “white monopoly capital” inclusive of the “failure” by the minister of finance to implement the CIEX recommendations and the victimisation of the Guptas. So what did Mkhwebane have before her?
Peripheral in context, there was the 2011 complaint lodged by Paul Hoffman that the £600,000 fee paid to CIEX was wasteful expenditure. On this basis she ordered compliance with the CIEX recommendations. But in doing so she curiously ignored the BFLF/Gupta complaint, already smashed by Gordhan, which must still have been before her. It was surely fundamental to the R1.15bn bailout which comprised the substance of the contentious CIEX report.
Yet, without having addressed the BFLF/Gupta complaint and without even reference to it, she granted the order not achieved in court.
* Greenblo is editorial director of Today’s Trustee, a quarterly magazine mainly for principal officers and trustees of retirement funds
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