Public protector Busisiwe Mkhwebane’s report querying the irregular appointment of curators to manage pension funds by the financial services watchdog has been reviewed and set aside in court.
The setting aside of the case against the Financial Sector Conduct Authority (FSCA), formerly known as the Financial Services Board, and its executive officer Dube Tshidi follows similar judgments on a raft of other reports by Mkhwebane since she became public protector.
Mkhwebane, in her official capacity, was ordered to pay the costs of the applicants up until the date that she agreed that the report be reviewed and set aside in November.
Last week the high court declared the report, which made a number of adverse findings against the Financial Services Board and Tshidi, constitutionally invalid and unlawful, citing the lack of jurisdiction.
Tshidi is now a member of the transitional management committee of the FSCA. The EFF was the complainant in the matter.
The report against the authority, which was published in March 2019, found that Tshidi irregularly nominated and recommended curators to manage pension funds in which the Financial Services Board was mandated to intervene.
The issues probed by the public protector dated as far back as 10 years ago. This was far beyond the prescribed limit. Complaints probed should not be about issues that happened more than two years ago. The public protector has to prove the prevalence of exceptional circumstances if she is to look into matters older than two years.
While it was agreed that the report be reviewed and set aside in 2019 already, the one sticking point was that Mkhwebane then wanted the report referred to her again.
The applicants refused this referral to her. That was after having said in court papers that she, among others things, had either conducted her investigation in perceived bad faith, or was alternatively grossly incompetent and negligent.
While the judgment did not make any comments on Mkhwebane’s conduct, it said the proposal to refer the report to her again did not make sense.
“The authority is satisfied with the outcome on this matter and looks forward to executing its mandate to ensure an efficient, stable financial sector where customers are informed and treated fairly,” the FSCA said in a statement on Thursday.
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