Suspended public protector Busisiwe Mkhwebane. (Jaco Marais/Foto24/Gallo Images)
Suspended public protector Busisiwe Mkhwebane instructed her former chief operations officer to shred a draft copy of the report on funding for the CR17 campaign after a meeting with President Cyril Ramaphosa, the parliamentary inquiry into her fitness to hold office heard on Monday.
Basani Baloyi testified that she found the instruction, as well as the fact that she was given a hard and not a soft copy ahead of the meeting, extraordinary.
It was conveyed in a WhatsApp message from Mkhwebane ahead of a meeting with the president on 30 May 2019.
“The first challenge that one had was the mere fact that with some investigations one was involved, or at some stage not involved, and now I need to go to Mahlamba Ndlovu and deliver the section 7(9) [notice], and now I’m given a hard copy, which is unusual, one was given a soft copy,” she said.
“I can only assume that the soft copy was problematic as to how it is structured, but to shred it, was the worst.
“It was an anomaly. The other reports that we have dealt with, involving cabinet ministers… there was never such an instruction to shred it.
“When I looked at this instruction, I was surprised and it was really unusual.”
Baloyi said after she cautioned staff that since the complaint related to a donation of some R500 000 by Bosasa founder Gavin Watson, they did not have a mandate to probe all funding to Ramaphosa’s campaign to become ANC president, she was accused of having been “coerced by certain individuals”.
“Then we were removed from that particular investigation.”
She said what transpired was painful and perplexing, but in the end the investigation was placed under Mkhwebane’s direct control.
“The chief of staff even said to me this report will be dealt with in this office and the PP will emerge as a powerful woman in the country after dealing with this particular matter.”
She said in another meeting with top executives, there had been mention that “this matter cannot be delegated to the NPA [National Prosecuting Authority] because the NDPP [national director of public prosecutions] will not actually deliver the results that I want”.
The investigation into the so-called rogue intelligence unit within the South African Revenue Service was marred by similar politicking, Baloyi testified.
She said she received a WhatsApp from Mkhwebane on 26 May 2019,saying that she was concerned about “sabotage from within the PG camp”, a reference to former finance minister Pravin Gordhan.
“Also, there was an email that came out from the chief of staff that ‘Mr Pravin was unruly’, number one, and that I was ‘not even aware of some of the sabotage there’,” she said,
She said what troubled her more still, was the mention in Mkhwebane’s message that “one has to play chess”, she said, reprising testimony she gave to court in a protracted labour dispute with the office of the public protector.
“I found that statement worrying, because if you are really doing a proper investigation, why play chess? And my interpretation was, it is a political game that is being played.”
Mkhwebane found that Ramaphosa had deliberately misled Parliament and went further still to detail the transfer of millions of rands between the CR17 campaign’s various bank accounts, concluding that a suspicion of money-laundering was merited.
The report was set aside as irrational on review, with the high court holding that she had made a material error of law and misstated the executive code of ethics.
The ruling was upheld by the constitutional court, which expressed the view that the error could not have been innocent, but seemed a deliberate misconstruction of the code to allow an adverse conclusion.
Along with the courts’ scathing criticism of her rogue unit report, it counts as part of the prima facie evidence of misconduct and incompetence that caused parliament to initiate an inquiry into her removal.
Baloyi said both reports were delivered in a rush, after Mkhwebane indicated that the investigations targeting Ramaphosa and Gordhan be treated as priorities.
She went to court after she was informed in October 2019 that her five-year contract with the office of the public protector would not be confirmed and asked to leave the building with immediate effect.
She said on Monday that she had been purged, and that Mkhwebane’s authoritarian, meddlesome manner had not allowed her and other staff to work in peace and to the professional standards they wanted to uphold.
“Her style of leadership was characterised by inflexibility; irrationality and a failure or refusal to treat her staff with dignity and respect. She fostered a culture of mistrust and insecurity within the organisation.”
This included berating Baloyi when she was at her sick daughter’s bedside in hospital and driving staff to work through the night to meet unrealistic deadlines. As a result the physical and psychological wellbeing of colleagues suffered.
“To the PP, any explanations no matter how reasonable, did not matter. When she wanted her reports, she would say, quite simply: ‘I do not care. I want it’.”
Baloyi added that she was frequently pressed to initiate disciplinary processes against subordinates without cause, and when she objected, action was taken against her.
“I was issued with a number of audi letters for a number of ‘infractions’, including for not issuing audi letters when instructed to do so. This was the norm in the organisation — issuing audi letters to staff for not meeting targets.
“This was the tool by which the PP wanted performance to be managed … these targets were for the most part unreasonable, and impossible to meet.”
Mkhwebane’s legal counsel, advocate Dali Mpofu, accused Baloyi of giving false evidence, and said she was not purged, as her clashes with the then chief executive of the institution Vusi Mahlangu proved her tenure was problematic.
When she disagreed, Mpofu told her to “relax” and take a sip of water.
Baloyi had earlier testified that Mahlangu tried to interfere with the report into the 2011 acquisition by the department of development and land reform of the Bekendvlei farm in Limpopo.
Mkhwebane found that Gugile Nkwinti had abused his position as the then minister in the portfolio.
Baloyi said a clear conflict of interest arose when Mahlangu, who had been Nkwinti’s director-general at the time, ensured that the public protector’s investigation ignored a forensic report by Deloitte commissioned by the department. The report found that he was guilty of misconduct on six counts, and he was fired as a result.
Mahlangu also met the investigator assigned the matter and manipulated the findings, she added.
Baloyi said Mkhwebane was aware of his conduct because she expressly told her.
She now works for the Gauteng department of health and told the committee that on 22 June, a fortnight after Mkhwebane’s suspension, the office of the public protector approached her to negotiate an out-of-court settlement.
Last week, the committee heard testimony that Mkhwebane had ordered staff to ignore information in the Gupta leaks emails that linked the family to the Vrede dairy farm scandal.