Mail & Guardian 09 January 2020

If the public protector is not “completely beyond reproach,” her office cannot hold the powerful to account, Busisiwe Mkhwebane’s former chief operating officer, Basani Baloyi, said in court papers.

Baloyi is persisting with her court case against Mkhwebane, saying she was “purged” from her job because she questioned the public protector’s decisions in several politically sensitive investigations. In an affidavit to the Constitutional Court, she said there was “serious rot at the core of one of the Constitution’s most important institutions. This is a crisis.”

Baloyi repeated her allegations, first made to the high court, that Mkhwebane selectively investigated and prioritised three reports “with no discernible explanation” — reports concerning President Cyril Ramaphosa, Public Enterprises Minister Pravin Gordhan and former head of the Independent Police Investigative Directorate, Robert McBride.
She completed these “in months, when other investigations languished for over two years. She has never given an adequate explanation for why she preferred some investigations over others,” said Baloyi.

In December, a second whistleblower came forward — Tebogo Kekana, a senior investigator in Mkhwebane’s office, who is now suspended.

In an affidavit made under the Protected Disclosures Act, first reported by amaBhungane and News24, Kekana alleged that a key remedial action in Mkhwebane’s report about the mandate of the South African Reserve Bank was drafted by the State Security Agency.

He also said that Mkhwebane instructed that the report into the Vrede dairy project scandal — in which former Free State premier Ace Magashule (now the ANC secretary general) was reportedly implicated — was not to make any findings against any politician.

The two sets of allegations shore up speculation that Mkhwebane is pursuing a political agenda inconsistent with her constitutional mandate. But her office has rejected Baloyi and Kekana’s allegations, saying they were false and the result of disgruntled former employees with an axe to grind.

Baloyi’s case was thrown out of the high court on jurisdiction grounds, with Judge Mmonoa Teffo saying the case was essentially a labour dispute and should have been brought before the labour court.

But in her application for leave to appeal directly to the Constitutional Court, Baloyi said the judge was incorrect. “The matter … has never been solely about me and my personal position. It has always been about the unconstitutional and unlawful conduct of the public protector. The real reason that I was purged was because I was an obstacle to Ms Mkhwebane and Mr Mahlangu [chief executive Vussy Mahlangu] using their power for their own personal advancement.”

She said the judge acknowledged the ulterior motive grounds for review was not a labour law issue. “But curiously, having made this observation, Teffo J then failed to consider the ulterior motives ground of review, and did not explain this failure.”

In a statement after Teffo’s judgment, the public protector’s office said if the court had thought there was merit to the ulterior motive claims, it would not have dismissed the case.

Baloyi said the powers of the public protector to root out corruption were “premised on the understanding that the public protector will be a person of integrity; that she will conduct herself within the law … that she will not abuse the powers granted to her by law”. Instead she had abused her office, “made false statements in court papers [and] is biased”. Mkhwebane’s spokesperson Oupa Segalwe said the public protector was not aware of Baloyi’s latest court action and so was unable to comment. “Suffice to say the high court dealt sufficiently with the matter when it dismissed the urgent application on the grounds that it did not have jurisdiction to hear the matter and refused to entertain the meritless claims of abuse of office.”

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