Wednesday was not a good day for public protector Busisiwe Mkhwebane. The Constitutional Court threw out her bid for the rescission of a prior ruling.
This came after she had sat in a section 194 committee hearing, listening to details of her alleged cruelty to staff. The top court found she abused its process and dismissed her most recent rescission application, calling it “an abuse of process of court”.
The Constitutional Court said no case had been made out for rescission and ordered Mkhwebane to pay the costs of the application personally.
In an unprecedented move in May, Mkhwebane approached the court for a second time for a rescission after asking it to rescind its February decision that cleared the way for the impeachment process in parliament. When that application was rejected, she again argued for the initial rescission order to be rescinded.
Her application for the rescission of a declined rescission bid centred on the way the court dealt with an SMS that she said pointed to a leak from the apex court in a separate but related case in the Western Cape High Court on April 24.
In the SMS, Ismail Abramjee said he had it “on very good authority” that the Constitutional Court had decided to reject Mkhwebane’s first rescission case and would be announcing that decision before the coming Friday on April 29.
An investigation of the SMS by retired Supreme Court of Appeal president Lex Mpati, which chief justice Raymond Zondo had requested, found that though judge Jody Kollapen knew Abramjee and had been in telephonic contact with him, there was no evidence that Kollapen shared any confidential information with Abramjee.
Mkhwebane had also asked the court to declare invalid and unconstitutional Zondo’s conduct in authorising the first rescission order before the outcome of the SMS investigation was announced.
With the Constitutional Court loss and personal costs order still dominating the news, Mkhwebane heard the office’s executive manager of investigations Ponatshego Mogaladi criticising her management skills.
Mogaladi accused Mkhwebane of acting callously when a colleague had a stroke. She said that chief investigator Abongile Madiba received “no support or mercy” and was “too sick to defend himself” in a disciplinary hearing.
“I really felt the pressure that was being put on Madiba was insensitive,” she told members of the impeachment committee.
She reported Madiba was so severely handicapped after this stroke that he relied on his son to prepare “volumes” of paperwork for his defence in a disciplinary process. “His greatest fear was losing his job because he really felt that he would not be able to afford medical attention that he required as a result of his condition.”
“He passed on unfortunately a month after the hearing. And from my interactions with him, even after the dismissal he passed on a very sad and broken man.”
Her claims echoed Monday’s testimony by former COO Basani Baloyi who described Mkhwebane as “disrespectful.” Baloyi said that under Mkwhebane the office resembled a mental health facility.
“Staff wellness suffered. People were simply ill, physically and psychologically,” said Baloyi. Mogaladi said that Mkhwebane threatened her in connection with missing a deadline in April 2018 when she was going through a “traumatic experience” when her niece died.
She testified Mkhwebane sent her some comforting messages quoting scripture but soon demanded several reports on threat of disciplinary action.
Mogaladi described “the public protector’s inflexibility” and said Mkhwebane wrote in an e-mail she “could not tolerate” executives undermining her.
She claimed Mkwhebane showed “no interest” in legitimate factors causing a case backlog.
Mogaladi said that former CEO Vussy Mahlangu acted at Mkhwebane’s “behest” and told her to explain why she should not be disciplined for a defective report based on a 2017 complaint EFF leader Julius Malema lodged about the CEO of the Financial Sector Conduct Authority (FSCA), Dube Tshidi.
In 2018, three days into an acting role, Mogaladi was under pressure from Mkwhebane to finalise the FCSA report.
Madiba asked for an extension to send the notices to people implicated in the investigation, but Mkhwebane refused.
She felt “undermined”, and ordered that he be issued with a warning.
When she was sent a draft FCSA in November 2018, Mogaladi warned Mkwhebane that Madiba was worried it would fail a legal review.
The FCSA took the report to court on review, and won. In October 2019, Mogaladi and others were accused of misconduct mostly in connection with the FCSA report. At the time of a joint disciplinary hearing, Madiba was in hospital. He was dismissed in June 2021 and died a month later.
Mogaladi and a colleague with whom she was dismissed challenged their dismissal in the labour court and won.
Mkhwebane’s lawyer will continue cross-examining Mogaladi on Thursday.
With TimesLIVE
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