Public Protector v Speaker of National Assembly & Others; Democracy in Action v Speaker of National Assembly & Others (Cases WCHC 2107/2020 & 1731/2020)

From Monday 7 June 2021 to Friday 11 June 2021 the Full Bench of the Western Cape High Court (that is, a Court comprising three judges) heard argument in two applications, one by the Public Protector and another by an organisation called Democracy In Action.

This website was conceived in order to inform the public on law-related matters in a way that leaves room for the reader to draw his or her own conclusions. When an opinion is expressed, that is made clear.

This is not an opinion. The idea is to inform the reader of the purpose of the applications and then arm the reader with all the written arguments placed before Court by all the various Counsel. What the reader does with these, or makes of them, is the reader’s choice.

The Public Protector has asked the Court to

  • declare unconstitutional the rules devised by the National Assembly for the removal of the Public Protector, the Auditor-General and members of Commissions established in terms of Chapter 9 of the Constitution for the strengthening of South Africa’s constitutional democracy
  • declare, in the alternative, that the rules do not apply retrospectively (in other words, that the rules do not apply to conduct that occurred before the date of their adoption, 3 December 2019)
  • review and set aside the rules
  • review and set aside the National Assembly’s adoption of the rules
  • review and set aside the Speaker’s decision to approve the motion for the removal from office of the Public Protector

Read the Public Protector’s Heads of Argument here –> HoA – Public Protector

Democracy In Action has asked the Court to

  • declare that the National Assembly has failed to pass legislation in order to give effect to a power conferred on it by the Constitution
  • declare that 5 Chapter 9-related pieces of legislation, including the Public Protector Act, are unconstitutional for failing to make provision for the removal of the Public Protector, the Auditor-General and members of Commissions established in terms of Chapter 9 of the Constitution for the strengthening of South Africa’s constitutional democracy
  • declare that the rules adopted by the National Assembly are unconstitutional
  • declare that adoption of the rules by the National Assembly without inviting the input of the affected parties is unlawful and unconstitutional
  • direct Parliament to amend the 5 Chapter 9-related pieces of legislation within 2 years so as to provide for appropriate circumstances in which the Public Protector, the Auditor-General and members of Commissions established in terms of Chapter 9  may be removed for office

Read the Democracy In Action’s Written Argument here –> DEMOCRACY IN ACTION HEADS OF ARGUMENT – 28 May 2021 Clean

Read Democracy In Action’s Oral Argument subsequently submitted in writing here –> Court Address – 10 June 2021

Read Democracy In Action’s Reply to Respondents’ Arguments here –> IN REPLY – Democracy in Action

Both applications are opposed by the same parties. The written argument can be accessed here:

Speaker’s Heads in Public Protector application –> HoA – Speaker in PP Application

Speaker’s Supplementary Heads in Public Protector application –> Part B Mkhwebane v Speaker – Speaker Suppl Heads – Final

Speaker’s Oral Argument Note –> PP v Speaker_Part B_Oral argument

Speaker’s Heads in Democracy In Action application –> Heads of Argument – Speaker

Speaker’s Oral Argument Note in Democracy In Action application –> DIA v Speaker_Oral argument

DA Heads of Argument in Public Protector application –> HoA – DA

DA Heads of Argument in Democracy In Action application –> DA Heads of Argument

DA Oral Argument in Democracy In Action application –> DA Note for DIA argument FINAL

DA Oral Argument in Public Protector application –> DA Note for PP argument

ATM Heads of Argument in Public Protector application –> ATM- HoA – ATM

Min of Justice Heads in Democracy In Action application –> Heads of Argument – Min of Justice

Min of Justice Oral Argument in Democracy In Action application –> Oral Argument – Minister of Justice FINAL

President Heads of Argument in Democracy In Action application –> HOA – President of SA

CASAC & Corruption Watch Oral Argument in Democracy In Action –> ARGUMENT NOTE ON BEHALF OF THE AMICI 11 June 2021

Final Report of the Panel on the Prima Facie case for Removal of the Public Protector –> FINAL REPORT OF THE INDEPENDENT PANEL EST i.t.o. NA RULE 129U AND Sect. 194 OF CONSTITUTION

By |2021-06-14T17:58:58+02:00Jun 14th, 2021|Cases of Interest, South Africa|Comments Off on Public Protector v Speaker of National Assembly & Others; Democracy in Action v Speaker of National Assembly & Others (Cases WCHC 2107/2020 & 1731/2020)

THE UNFINISHED STORY – THE RESERVE BANK BAILOUT OF THE BANKORP GROUP AND ABSA: PART 2

This is Part 2 of a paper on the fabled “lifeboat” or “bailout” afforded by the SA Reserve Bank to the Bankorp Group and Absa Bank between 1985 and 1995.

As pointed out in Part 1 of the paper, this bailout has been the subject of three investigations:

  • the Special Investigating Unit (“the SIU”), led by Judge Willem Heath, following a proclamation by President Thabo Mbeki, which concluded that the SA Reserve Bank R1.5 billion bailout of the Bankorp Group and Absa Bank was a “simulated transaction” – a gift disguised as a loan. That Report was never released by President Mbeki or any other President after him.
  • the Davis Panel of Experts, led by Judge Dennis Davis, appointed by Mr Tito Mboweni – then governor of the Reserve Bank and now Minister of Finance – which reached the same conclusion as the SIU as regards the “simulated” nature of the bailout.
  • the Public Protector who found likewise and went further to direct that the money be recovered from Absa Bank and other beneficiaries.

In this Part 2, we discuss the findings and recommendations of the three investigations and propose the way forward with reference to Constitutional Court authority.

Read the full Analysis here The Unfinished Story – SA Reserve Bank Bailout of the Bankorp Group and Absa Bank – Part 2

By |2021-04-30T19:32:25+02:00Apr 30th, 2021|Analyses and Reviews|2 Comments

THE UNFINISHED STORY – THE RESERVE BANK BAILOUT OF THE BANKORP GROUP AND ABSA: PART 1

In 1999 the Special Investigating Unit (“the SIU”), following a proclamation by President Thabo Mbeki, found that the South African Reserve Bank R1.5 billion bailout of the Bankorp Group and Absa Bank was a “simulated transaction” – a gift disguised as a loan. That Report was never released by President Mbeki or any other President after him.

Instead, Judge Willem Heath who led the probe released a 17-page Official Media Statement on his findings.

Soon after, Mr Tito Mboweni – then governor of the Reserve Bank and now Minister of Finance – appointed a Panel of Experts, led by Judge Dennis Davis, to undertake the same investigation that Judge Willem Heath’s Special Investigating Unit had just completed. The Panel of Experts reached the same conclusion as the SIU as regards the “simulated” nature of the bailout.

Then came the Public Protector who investigated the same issue, made findings and took remedial action.

While both the SIU and Davis Panel of Experts found that the transaction was, in effect, a fraud, they stopped short of recommending the repayment of the funds thus procured. So, their findings were not challenged in court. The Public Protector, however, ordered the repayment of these funds. What happened to her next leaves some unanswered questions about why the bailout issue seems to be a no-go area.

In this short paper, I explore this question, beginning with the background to this infamous bailout. In that process, I discuss the findings of these probes, offer my own views and suggest the way forward.

Read the full Analysis here The Unfinished Story – The SA Reserve Bank Bailout of the Bankorp Group and Absa Bank – Part 1

By |2021-04-30T19:28:36+02:00Apr 28th, 2021|Analyses and Reviews|7 Comments