Madonsela concluded it would not be 'lawful‚ reasonable or fair' to recover money from current shareholders
Absa bought Bankorp after it was bailed out by the apartheid government’s Reserve Bank and Mkhwebane alleged Absa should pay back the state money used to bail out Bankorp.
When Mkhwebane released a report suggesting Absa should repay money‚ Absa demanded the record of documents she used to make her decision. She provided some of them to court but not all.
Those provided reveal that Madonsela came to a different conclusion to Mkhwebane.
In its second affidavit‚ Absa reveals Madonsela came to the conclusion it would not be "lawful‚ reasonable or fair to recover as prescription and dictates of fairness to current Absa investors militate against any action to recover."
In a press statement Absa says: "The fact that the current Public Protector came to a different conclusion is significant."
The record also shows how Mkhwebane had discussed the idea with the secret service and an economist that government should take shares in Absa as way for them to pay back money.
"There is also a discussion of what appears to be options for recovery of the money allegedly owing by Absa‚ including payment in instalments‚ or that the state should be given Absa shares as a form of repayment‚" said the bank.
“It is wholly unclear why and deeply disturbing that the Public Protector was holding a meeting with the State Security Agency and an unidentified economist less than two weeks before she issued the report‚ and apparently discussing the remedial action which she would impose against Absa."
The record also shows Mkhwebane was missing some of the interview transcripts from interviews that Madonsela used to write the report and conclude Absa owed nothing.
This included an interview with complainant in matter‚ Michael Oatley of Ciex and a member of the South African Secret Service.
"It is therefore‚ not clear on what basis Ms Mkhwebane chose to ignore Madonsela's conclusions‚" states Absa.
The record showed that Absa did not benefit from the state assistance for Bankorp‚ but had paid a price that took the financial assistance into account and in the end lost money in the deal‚ said Absa.
Absa has asked for the complete record leading up to why Mkhwebane made her decision.
"To date‚ the Public Protector failed to furnish us with the complete record. There are many critical documents which are still outstanding‚ many of which the Public Protector says she has not had sight of‚" said Absa.
Absa criticised the Public Protector’s work‚ holding nothing back: "Overall‚ our position is that the Public Protector’s investigation was conducted in a grossly incompetent and fundamentally unfair manner‚ and had material factual and inaccurate errors."