“Absurd and outrageous” – these were the words Public Protector Busisiwe Mkhwebane used to describe the interpretation of WhatsApp messages contained in court papers filed by former public protector SA (PPSA) COO Basani Baloyi.
Baloyi was axed as COO and other PPSA officials were suspended in October, in a purge by Mkhwebane.
Baloyi later took the matter to court, believing that her dismissal was unlawful and that Mkhwebane had acted “unconstitutionally”.
In her court papers, Baloyi said Mkhwebane sent her a WhatsApp message during the so-called “rogue unit” investigation, which said the following:
“COO. I worked with few people to deal with the sabotage of the [Minister Pravin Gordhan] camp. The notice is almost ready for rogue, will issue this week and report will also be issue 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 (sic).”
In her answering affidavit, Mkhwebane said the messages were a reference to counteracting the “conspiracy” against her.
Mkhwebane explained that in her release of the so-called “rogue-unit” report, there was a concerted effort by Gordhan, who is the current minister of public enterprises, and his team to “discredit my office and to politicise its work by labelling me as a participant in corruption and ‘state capture’.”
Part of this theory, Mkhwebane said, was that she released her report days before President Cyril Ramaphosa was to appoint his new Cabinet, so that Gordhan would not be appointed.
“All of this is, of course, a speculative imaginary and unfounded conspiracy theory against which my office had to be naturally alert, and devise communication strategies to resist and refute,” she added.
Mkhwebane explains that her reference to chess in the messages “was obviously in respect of our defensive moves to counteract the sabotage and unwarranted attacks directed at the office of the public protector”.
“If there was any alleged ‘game’, it was initiated by our assailants and we were entitled to defend the integrity of the office. We shall always continue to do so, as we are duty-bound by the Constitution.”
Mkhwebane also said part of running PPSA included countering the games played by the powerful.
“One of the key and inherent requirements of running the office of the public protector is to devise strategies to counteract the guaranteed games played by very powerful people and institutions under investigation to frustrate the work of the public protector at every twist and turn, including, but not limited to, attempts at manipulating the courts and public opinion.”
According to Mkhwebane, the public protector should work “without fear, favour, or prejudice”.
This, she said, was reflected in the Constitutional Court judgment regarding former public protector Thuli Madonsela’s Nkandla report.
In it, Chief Justice Mogoeng Mogoeng said: “She is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath.”
Mkhwebane quoted this in her papers.
She added: “That is the nature of the inevitable chess game that comes with the territory of the office. Like a literal chess game, it features kings, queens, knights and no shortage of witting and unwitting pawns.”
In her affidavit, Baloyi said Mkhwebane’s handling of the Bosasa/CR17 (Ramaphosa’s ANC presidency campaign) matter was “extremely unusual”.
One reason for this was because Mkhwebane refused to expand the scope of the investigation once it came to light that the late Bosasa CEO, Gavin Watson, also donated money to Nkosazana Dlamini-Zuma’s (NDZ) campaign.
Baloyi said once she raised this point with Mkhwebane, she was taken off the case and external people conducted the investigation.
Mkhwebane, however, has defended her decision, saying donations made to other campaigns would have had no bearing on whether Ramaphosa misled Parliament as alleged in the original complaint.
“While the NDZ campaign might have been of general and casual interest to the COO, it is not covered by EMEA. A competent and suitable COO would know this almost instinctively,” Mkhwebane said.
She added: “There was nothing unusual about my decision to reduce the team substantially, due to the high profile and sensitive nature of an investigation involving the head of state which, by definition, is no ordinary investigation as alleged by the applicant.”
As for Baloyi’s dismissal, Mkhwebane maintained the matter should be handled in a labour court and not a criminal court.
She also said the matter should be struck off the roll.
Referring to her alleged unconstitutional behaviour, Mkhwebane said she saw no reason why “the imminent danger to society” was not brought to the court’s attention by Baloyi before her dismissal.
“Had the applicant acted with the necessary zeal and newfound public-spiritedness and conscience, the application would long have been heard by now and the relief granted or refused even if the matter had been instituted in due course,” Mkhwebane said.
According to Mkhwebane, Baloyi had been dismissed for poor performance, and also for allegedly breaching the confidentiality clause.
She added that certain legal requirements had not been met by Baloyi to sustain her argument that Mkhwebane and the PPSA CEO, Vussy Mahlangu, wrongfully dismissed her and, in doing so, had ulterior motives.
She added: “The application ought to be struck off the roll with punitive costs in order to send a message that such frivolity and obfuscation will not be tolerated in our courts. Such conduct is deserving of the judicial frown.”