The inquiry into suspended public protector Busisiwe Mkhwebane’s fitness to hold office will resumes today after proceedings were halted due to a technical glitch on Thursday.
The committee is expected to hear evidence from Basani Baloyi, the former chief operating officer (COO) in the public protector’s office, about Baloyi’s controversial dismissal and a conniving text message she received from Mkhwebane after she assumed her post in 2019.
The text message, which evidence leader advocate Ncumisa Mayosi screened on August 3, suggests that the duo may have conspired against the senior manager for executive support in the office of the public protector, Futana Tebele.
Baloyi is expected to clarify the context of the text.
Mayosi said: “She will testify that on the 18 of February 2019, soon after she started at the PPSA [Public Protector of South Africa], she received a text from the PP [public protector] that reads as follows: ‘COO careful of what you hear from Pona and Tebele. But you are an adult be wise PP’.”
Tebele was on the stand [at the time] when the text message emerged. He told the committee that he was not aware of the allegations that Mkhwebane doubted him, insisting that he in fact believes the public protector trusted him.
Tebele told the committee: “Well, it’s for the first time that I see the note. Throughout my working in PPSA and working with public protector, advocate Mkhwebane, I have never created an environment where I believe that I would have been not trusted, but I will leave it up to the public protector because I wouldn’t know why she said what she said if it’s her who said what she said.
“I always believed that she trusts me and even today I still do believe that she trusts me, and not only her but even the CEO that I’m serving under. So, I see myself as a person who can be trusted in the institution.”
Baloyi’s dismissal
Baloyi was employed by the office of the public protector on a five-year contract that provided for a six-month probation period, which could be extended for not more than 12 months.
It is alleged that at the end of the probation period, the public protector would be entitled to either terminate or confirm her appointment, however, several months after Baloyi’s probation period ended, she was informed that the office of the public protector was unable to confirm her permanent employment.
In 2020, Baloyi submitted an urgent application at the high court in Pretoria stating that her dismissal was unlawful and that the public protector had not complied with her constitutional obligations.
The high court dismissed the case and ruled it did not have jurisdiction over the dispute, which it said should have been brought before the Labour Court instead.
Baloyi appealed the dismissal and sought a review of the decision to terminate her employment and an order for reinstatement. She also challenged the high court’s finding that it did not have jurisdiction in relation to both the declaratory relief and the review relief.
In an unanimous judgment penned by Justice Leona Theron on December 4 2020, the Constitutional Court found that the high court erred in dismissing Baloyi’s case because it was “essentially a labour dispute”.
Reads the judgment: “This court concluded that the high court erred in dismissing Ms Baloyi’s application on the basis that it was “essentially a labour dispute” and that its jurisdiction was not engaged.
“Accordingly, it upheld Ms Baloyi’s appeal against the high court’s finding on jurisdiction and remitted the matter to the high court Gauteng division, Pretoria for a hearing de novo [anew].”
The court clarified 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 court allowed Baloyi to proceed with her case afresh and ordered the public protector to pay for her legal costs.
“The court held that the termination of a contract of employment has the potential to find a claim for relief for infringement of the LRA [Labour Relations Act] and a contractual claim for enforcement of a right that does not emanate from the LRA. It is for the litigant to decide which cause of action to pursue.
“This court found that Ms Baloyi had advanced a claim for contractual breach and expressly disavowed reliance on the provisions of the LRA. The court held, further, that while Ms Baloyi may also have a claim for unfair dismissal in terms of the LRA, nothing in the LRA required her to advance that claim in the Labour Court.
“As for the public law basis for the review relief and the declaratory relief based on section 182(1) of the constitution, this court held that neither of those claims fell within the exclusive jurisdiction of the Labour Court in terms of section 157(1) of the LRA, ” Theron wrote.
This is a developing story
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