Public Protector Busisiwe Mkhwebane has admitted that her office doesn’t have the constitutional mandate to call for changes to the constitution and the South African Reserve Bank’s (Sarb) mandate of protecting the currency and keep inflation in check.
The office of the Public Protector announced on Monday evening it would follow the advice of its counsel and not oppose the Sarb’s action to have her finding regarding the bank set aside.
As part of her investigation into the Absa-Sarb “lifeboat”, Mkhwebane had recommended that a constitutional amendment be made to the mandate of the central bank to include that it “improves the socio-economic conditions of its citizens”. The recommendation was part of the remedial action in her CIEX Report.
On Tuesday, the Sarb said it would still pursue legal action against Mkhwebane despite her decision to back down. “The Sarb is consulting its legal team about the way forward…The Sarb will proceed with a separate application for the review of the Public Protector’s report and evidential factual inaccuracies therein,” it said in a statement.
At the weekend, speaker of Parliament Baleka Mbete opposed the report saying that Mkhwebane’s remedial action was unconstitutional and ignored the concept of separation of powers. Mbete joined Absa and Minister of Finance Malusi Gigaba in challenging Mkhwebane’s remedial action.
Mkhwebane in her affidavit initially defended her remedial action by saying that she had the constitutional power to determine the appropriate remedial action measure and the manner in which her remedial action should be implemented. She cited Section 181 and Section 182 of the constitution for defending the powers of the Public Protector.
In justifying not challenging the review of her remedial action by the Sarb, Mkhwebane said the constitution confers the authority only on Parliament to amend the constitution.
She added that the power to amend the constitution is exercised at the discretion of Parliament and “not under dictation by any other body”.
“It is not possible that the constitution would confer a power upon the Public Protector to undermine other provisions of the constitution,” she said in her affidavit.
The remedial action for Parliament to change the constitution in order to take away the power of the Sarb in protecting the currency and keeping inflation in check, “trenches on the powers of Parliament”, she said.
Mkhwebane also agreed that her remedial action of seeking amendments to the constitution can be reviewed and set aside. She will also pay legal costs, excluding those of Absa.
The obligation of Parliament’s chairperson of the portfolio committee on justice and constitutional services and the Sarb to submit an action plan to Mkhwebane on her remedial action has also been set aside.
Mkhwebane is opposing the challenge of Gigaba and Absa. On the latter, she said that Absa is a respondent in the matter and its application to be a co-applicant has not yet been adjudicated.
“I am advised and respectfully submit that the application for recognition as a co-applicant is, in any event, irregular,” said Mkhwebane.