Claims by her former chief operating officer that Busisiwe Mkhwebane had acted unconstitutionally and for her own ends in politically sensitive investigations were “a poor attempt at sensationalism”, said the public protector in court papers this week.
In an affidavit filed in the high court in Pretoria, Mkhwebane hit back at Basani Baloyi’s claims that the investigations into allegations of a “rogue unit” at the South African Revenue Service and into President Cyril Ramaphosa’s CR17 campaign were “extremely unusual”.
Baloyi is in a labour dispute with her former employer and is demanding that she be reinstated as chief operating officer. But she has also asking the court to declare that Mkhwebane violated her constitutional obligations to act independently and impartially. In her founding affidavit, Baloyi said she was “purged” because she was an “obstacle to the public protector and CEO [chief executive officer] using their powers for their own personal advancement”.
She said the chief executive, Vussy Mahlangu, had improperly interfered in the investigations into Water and Sanitation Minister Gugile Nkwinti and former head of the Independent Police Investigative Directorate Robert McBride — and that Mkhwebane had allowed it.
She also said that Mkhwebane had refused suggestions to look into donations to the election campaign of Nkosazana Dlamini-Zuma (NDZ), who was running against Ramaphosa. After the suggestion, external people were brought in, she said.
But Mkhwebane said including these allegations in a labour dispute was mischievous, irrelevant and done purely to harass her. She has asked the court to strike them from the record. “The real nature of this application is a labour dispute,” she said. Mkhwebane added that the chief operating officer’s work was not up to scratch. “At times I had to spoon-feed her with very basic management skills, which I should not be expected to do at her expected level.”
Mkhwebane said the NDZ campaign was not covered by the Executive Members’ Ethics Act. “A competent and suitable COO [chief operating officer] would know this almost instinctively.” There was also nothing unusual about the decision to reduce the Bosasa team substantially. This, she said, was “due to the high-profile and sensitive nature of an investigation involving the head of state”.
Mkhwebane also hit back at the WhatsApp message attached to Baloyi’s court papers. The message sent on May 26 2019 read: “COO, I worked with few people to deal with the sabotage of the PG [Pravin Gordhan] camp. The notice is almost ready for rogue, will issue this week and report will also be issued in the manner I will determine. The notice for the president is also ready, will call him this week to discuss the notice. It is not about you, but one has to play the chess.”
“I understood the reference to playing chess … to mean that the public protector was playing a political game,” said Baloyi in her court papers.
But this interpretation was “absurd and outrageous”, Mkhwebane said. “It is a well-known fact … that there was a concerted effort by … Gordhan and his team to discredit my office and to politicise its work by labelling me as a participant in corruption … all of this is, of course, a speculative imaginary and unfounded conspiracy theory,” said Mkhwebane. But her office had to be alert to it and “devise communication strategies to resist and refute”.
“My reference to chess was obviously in respect of our defensive moves to counteract the sabotage and unwarranted attacks.”
Mkhwebane added that “as proof of [Baloyi’s] malicious intent”, the fact that the Mail & Guardian sent questions “within a few hours” of the court papers being served, and its publication the following day of a story quoting extensively from the papers, showed that Baloyi had “leaked” her court papers to the M&G. This was in pursuit of her agenda to “cause maximum reputational damage”, said Mkhwebane.
The case is expected to be argued next week.