National Assembly Speaker Baleka Mbete has filed an affidavit supporting the South African Reserve Bank’s (Sarb's) court application on Public Protector Busisiwe Mkhwebane’s so-called “CIEX Report” and findings, parliament said on Sunday.
In her affidavit filed on Friday, Mbete also asked the Gauteng High Court to allow her and justice and correctional services portfolio committee chairperson Mathole Motshekga to act as applicants in the case, parliament’s spokesperson Moloto Mothapo said.
In her report released on June 19, Mkhwebane found that ABSA Bank should pay R1.15-billion to the fiscus. Oddly, she also recommended that the mandate of the Sarb be changed from targeting inflation to promoting economic growth. Accountability Now head Paul Hoffman, who lodged the original complaint, did not ask for such a finding at all and has himself stated he does not believe this finding to be correct.
On Sunday, Mothapo said key elements of Mbete’s affidavit were that Mkhwebane’s “order is unconstitutional, is not a remedy, encroaches on parliament’s exclusive domain, is undemocratic, negates section 74 of the Constitution which sets out the special requirements for amending the Constitution, and her amendment perverts the separation of powers”.
“In addition to the remedial action set out in the public protector’s order and the precise wording posited as a replacement for the current section 224 of the Constitution, the public protector added that the Reserve Bank and the chairperson of the portfolio committee must submit an action plan within 60 days on their implementation of her order,” he said.
The effect of Mkhwebane’s amendment would be to remove the primary object of the Sarb to protect the value of the currency. This function was not allocated to anyone else and left the currency unprotected. “The order to amend the Constitution to strip the Reserve Bank of its primary function of protecting the value of the currency is also entirely unrelated to the improper conduct that she found to have been committed.”
The order was unconstitutional because it was beyond the scope of the public protector’s mandate. This was strictly confined to the parameters set by the Constitution, of which she was a creation and from which she derived her remedial powers.
It encroached on parliament’s exclusive domain – the enactment of national legislation – and the public protector did not have the power to prescribe to parliament how to exercise its legislative powers. This would be so even if the public protector intended no more than to order the chairman of the portfolio committee to introduce a motion for amending the Constitution because that was also an exclusive function of parliament.
“The order is also undemocratic and profoundly contrary to the values of democratic government, accountability, responsiveness, and openness, and negates the special requirements to amend the Constitution. The purpose of these, contained in section 74 of the Constitution, is to ensure that members of parliament when considering an amendment to the Constitution do so with the benefit of wide public input,” Mothapo said.