1. The applicant, the South African Reserve Bank, (“the Reserve Bank”) seeks urgent relief setting aside the remedial action taken by the first respondent, the Public Protector, in her Report 8 of 2017/1018 into the Alleged Failure to Recover Misappropriated Funds (“the final report”). The final report followed an investigation and a preliminary report by the Public Protector into a complaint about the alleged failure by government in 1999 to implement the recommendation of a covert UK based asset recovery agency, CIEX, suggesting that the government recover monies paid by the Reserve Bank to Bankorp, a private commercial bank. The funds were provided to Bankorp between 1985 and 1995 by the Reserve Bank acting as a lender of last resort.
2. Chapter 9 of the Constitution establishes various independent and impartial state institutions with the aim of strengthening constitutional democracy in the Republic. One of them is the Public Protector, who is constitutionally mandated to protect the public from any conduct in state affairs or in any sphere of government that could result in any impropriety or prejudice. The Constitutional Court recently described the Public Protector as “one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in state affairs, and for the betterment of good governance”. The person occupying the office is required by the governing legislation, the Public Protector Act (“the Act”), to be “a fit and proper person to hold such office” and to be a Judge or to have substantial experience in the administration of justice or public affairs.
3. Section 182(1) of the Constitution is the primary source of the powers of the Public Protector. It reads:
“The Public Protector has the power, as regulated by national legislation –
(a) to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
(b) to report on that conduct; and
(c) to take appropriate remedial action.”
Section 182(2) of the Constitution provides that the Public Protector has the additional powers and functions prescribed by national legislation. These are contained in the Act.