Mkhwebane vs Baloyi: Ex-Public Protector COO wins bid to have dismissal heard in High Court

Former Public Protector of SA chief operating officer (COO) Basani Baloyi has received the go-ahead from the Constitutional Court for her case against the Public Protector to be heard anew.

This, after she successfully challenged a High Court ruling on the basis that it did not have jurisdiction to hear her “labour matter”.

In a unanimous judgment penned by Justice Leona Theron, the Constitutional Court found that the High Court erred in dismissing Baloyi’s case because it was “essentially a labour dispute”.

“Accordingly, her appeal against the High Court’s finding on jurisdiction must be upheld and the matter be remitted to the High Court, Gauteng Division, Pretoria for a hearing de novo (anew).”

However, the court pointed out that the Labour Court did not have exclusive jurisdiction over labour matters, unless legislation mandated it, and that such matters could also be heard by a High Court.

“The exclusive jurisdiction of the Labour Court is engaged where legislation mandates it, or where a litigant asserts a right under the LRA (Labour Relations Act) or relies on a cause of action based on a breach of an obligation contained in that act,” Theron wrote.

“In sum, the mere fact that a dispute is located in the realm of labour and employment does not exclude the jurisdiction of the High Court.”

The ruling allows Baloyi to proceed with her case afresh, either at the High Court or the Labour Court.

The court also ordered the Public Protector to pay Baloyi’s legal costs.

However, the court dismissed Baloyi’s leave to appeal the crux of the matter – that the Public Protector’s decision to terminate her contract in 2019 was “unconstitutional, unlawful, invalid and of no force and effect”.

Baloyi sought an order compelling the office to reinstate her and an order declaring that Busisiwe Mkhwebane had violated her constitutional obligations as Public Protector, which the Constitutional Court decided not to hear.

Theron said this was because the “merits of Ms Baloyi’s application were not ventilated in the High Court” and suggested that this be done.

Last year, Mkhwebane and her CEO, Vussy Mahlangu, dismissed Baloyi and suspended four other senior officials and investigators in the office in a sweeping purge.

Baloyi took her matter to court, saying she believed Mkhwebane dismissed her because she was “an obstacle to the Public Protector and the CEO using their power for their own personal advancement”.

She argued that Mahlangu did not have the authority to terminate her contract, saying “the termination decision was made in bad faith for the ulterior purpose of furthering nefarious political objectives,” according to court papers.

In turn, Mkhwebane denied the allegations, saying they were “scandalous, vexatious and/or irrelevant” and that the case should be seen as “nothing but vindictive vengeance”.

News24

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