Judge John Murphy on Tuesday reserved judgment in the High Court in Pretoria in a matter pitting the Reserve Bank against Public Protector Busisiwe Mkhwebane.
The Bank is seeking to have the remedial action‚ contained in her report into the Absa/Bankorp lifeboat and directing a change to its constitutional mandate‚ reviewed and set aside.
Mkhwebane is not opposing the relief sought by the Bank.
In her report‚ Mkhwebane directed the chairperson of the portfolio committee on justice and correctional services to institute a parliamentary process that would result in a change to the Bank’s constitutional mandate.
Mkhwebane said the Bank’s primary mandate should be changed from one that protects the value of the currency in the interest of balanced and sustainable growth‚ to one that focuses on the socioeconomic wellbeing of citizens.
On Tuesday‚ counsel for the Reserve Bank‚ Absa‚ the speaker of Parliament and the portfolio committee chairperson submitted that directing a change to the Constitution was outside the power of the public protector.
The instruction violated the separation of powers and the legislative power vested solely in parliament‚ said advocate Gilbert Marcus‚ acting for Absa.
The public protector’s remedial action regarding the Reserve Bank did not flow from the findings made in her report regarding the apartheid-era bail-out of Bankorp‚ which Absa later bought‚ said advocate Chris van der Walt‚ acting for the Bank.
Neither was it contained or suggested in her preliminary report‚ of which the parties had sight.
In her affidavit conceding the relief sought by the Bank‚ the public protector still sought to justify her actions and‚ in doing so‚ misunderstood the role of the Reserve Bank‚ notwithstanding extensive submissions made to her‚ Van der Walt said.
The power given to the Bank was much wider than only its primary objective of preserving the currency. These powers were vested in the constitution and the Reserve Bank Act.
Mkhwebane ignored this and therefore found a defect that did not exist in its mandate‚ he said.
Counsel for the public protector said it concurred with the submissions made by the Bank and Absa to have the remedial action set aside.
Mkhwebane’s answering affidavit‚ while making certain concessions‚ did not go far enough‚ Van der Walt said.