Mkhwebane vs Baloyi: Axed COO's work was not up to scratch, court hears

2019-11-27 21:20
Public Protector Busisiwe Mkhwebane looks at ACDP MP Steve Swart when he asks her about the adverse court findings against her during Friday's meeting of the Portfolio Committee on Justice and Correctional Services. (Jan Gerber/News24)

Public Protector Busisiwe Mkhwebane looks at ACDP MP Steve Swart when he asks her about the adverse court findings against her during Friday's meeting of the Portfolio Committee on Justice and Correctional Services. (Jan Gerber/News24)

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Axed Public Protector COO Basani Baloyi and Public Protector Busisiwe Mkhwebane faced off in the Gauteng High Court in Pretoria on Wednesday over Baloyi's axing amid allegations Mkhwebane had acted unconstitutionally.

Baloyi has taken both Mkhwebane and Public Protector CEO Vusi Mahlangu to court over her axing which she said was part of a purge.

She also wants the court to declare that Mkhwebane had acted unconstitutionally, violating her obligations towards independence.

Advocate Dali Mpofu, on behalf of Mkhwebane, argued Baloyi's work was not up to scratch which resulted in her dismissal.

Poor performance

Baloyi, who was on probation before she was dismissed, said no major concerns had been raised with her regarding her performance.

Mpofu, however, said there was "serious dissatisfaction" with her performance.

He argued he could not see the connection between Baloyi's allegations and the labour dispute.

"Let's assume all these bad things happened … this, that and the other one, what has this got to do with what has brought us here today?

"There is no connection whatsoever with all this very interesting tales and stories," Mpofu said.

He added Baloyi had not exhausted internal remedies before approaching the court.

Her lawyer, Tembeka Ngcukaitobi, argued she had been dismissed as a result of resisting Mahlangu's interference in the Prasa investigation, which Mpofu said was never pleaded in her papers.

Mpofu added the case had no urgency "whatsoever", saying Baloyi could have taken these concerns forward back in April.

He maintained the case should be heard in a labour court and not the High Court because it was essentially a labour dispute.

Ulterior motive

Ngcukaitobi said the allegations were triggered by the dispute, however, and maintained Mkhwebane had an ulterior motive in axing Baloyi.

The allegations include that Mkhwebane acted with bias in the pursuit of a political objective, she abused state resources for her own ends, she made false claims about the extent of Mahlangu's interference in investigations, and acted unethically in the manner in which she handled investigations.

"In summary, there is a direct complaint that the incumbent is abusing the Office of the Public Protector," Ngcukaitobi said.

"She is acting unethically [and] is eroding the moral authority of the Office of the Public Protector.

"If one bears in mind the constitutional significance of the Office of the Public Protector, it goes without saying that it is … urgent that this court intervene to stop the abuse of power by advocate Mkhwebane.

"It is important not only for the institutional integrity of the office, it is important also for those people who may be tempted to lodge complaints against the Public Protector. It is important that that office is not sullied by allegations of abuse of office, misuse of power for political ends and misuse of power for personal ends," Ngcukaitobi argued.

"If she is not stopped, the situation will escalate and it will get worse not better."

Ngcukaitobi maintained they were not asking the court to remove Mkhwebane from office, as that power only lies with Parliament, adding they were asking it for a judicial declaration that she had acted unconstitutionally.

Read more on:    public protector  |  busisiwe mkhwebane  |  johannesburg  |  labour dispute
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