High Court dismisses case against Public Protector by her former COO



The high court on Thursday dismissed an application against Public Protector Busisiwe Mkhwebane by her former chief of operations Basani Baloyi to be reinstated. The court said that it did not have jurisdiction to deal with Baloyi’s case.

Baloyi had gone to court saying she had been “purged” from the Public Protector’s office after she had raised concerns about the way certain politically sensitive allegations were being conducted — including the investigations into President Cyril Ramaphosa’s CR17 campaign and into allegations of a “rogue” investigating unit at the South African Revenue Service. The allegations were vigorously denied by Mkhwebane.

READ MORE: Public Protector ‘played chess with the country’

Baloyi wanted the court to order her reinstatement and to declare that Mkhwebane had breached her constitutional duty to act without fear, favour or prejudice.

The high court did not deal with any of Baloyi’s claims, instead rejecting the case on the basis that it was brought to the incorrect court.

In court, Baloyi’s counsel Tembeka Ngcukaitobi argued that this case was one of concurrent jurisdiction, allowing Baloyi to make a choice as to which forum to go to. But Mkhwebane’s counsel Dali Mpofu SC had argued that the case was, at its heart, about whether the Public Protector had committed an unfair labour practice in how she dealt with Baloyi’s probation — a matter that fell under the Labour Relations Act (LRA) and therefore the labour courts.

Judge Mmonoa Teffo went through the cases that dealt with the jurisdiction of the High Court versus the labour court and Commission for Conciliation Mediation and Arbitration. She said that, in essence, Baloyi was seeking reinstatement of her employment contract. The termination happened while she was still on probation, and which had been tacitly extended, said Teffo.

“Save for the allegation that the purported termination of the employment contract of the applicant was motivated by ulterior motives, the other allegations as pleaded are essentially labour disputes as envisaged in the LRA. They meet the definitional requirements of unfair labour practices or unfair dismissal,” Teffo said.

She said what was in essence a labour dispute should not be “labelled a violation of constitutional rights” simply because the issue raised could also support a conclusion that the employer’s conduct violated a constitutional right.

“I find that this Court does not have jurisdiction to hear this matter,” she said.

In a statement later on Thursday, the Public Protector welcomed the judgment saying it had vindicated her. “The fact that the court dismissed the application on jurisdiction means the judge – having read the papers and listened to oral arguments – was not convinced that there was any merit to the claims of abuse of power and abuse of office,” said Oupa Segalwe, spokesperson for the Public Protector.

“Had the court found there was merit to the claims, it would not have dismissed the matter,” said Segalwe. 

Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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