Baloyi maintains her claim against Mkhwebane, but Mpofu wishes to question her more

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Former Chief Operations Officer Basani Baloyi says she stands by her claim that suspended Public Protector Busisiwe Mkhwebane and former CEO Vussy Mahlangu purged her from the Office of the Public Protector.

Baloyi is currently employed as a Deputy Director-General in the Gauteng Department of Health.  She is the thirteenth witness to testify in the Section 194 Inquiry into Mkhwebane’s fitness to hold office so far.

Baloyi became COO on a fixed-term contract that started on 1 February 2019 ending in 2024. But she says she was on a six-month probation period which ended on 31 July 2019.

The contract was terminated in October after her probation period has ended. She told the inquiry that her rights were violated for the manner in which her contract was terminated.

Evidence Leader Advocate Ncumisa Mayosi took Baloyi through her affidavit and reasons why she is testifying.

Mayosi asks: “You say in  paragraph 3 of this affidavit that you make this affidavit to place before this inquiry reasons why you believe you were purged from the PPSA by the PP and her former CEO Mr Vussy Mahlangu, do you see that?”

Baloyi responds: “Yes”

Mayosi: ” Now Miss Baloyi these are serious allegations. That’s a serious allegation or claim to make. Do you stand by that claim?”

 Baloyi: “yes”

Baloyi has denied the statement by Mahlangu that Mkhwebane had one-on-one meetings with her over her performance after the six-month probation period had ended.

Mayosi continued to lead evidence on this issue:

“And in paragraph 4 of the letter, Mr Mahangu says one-on-one meetings were scheduled between you and the PP on a weekly basis. These meetings were aimed at improving performance and during these meetings as well as an impromptu meeting with you, the PPSA highlighted various performance deficiencies. Did these meetings occur? What do you say to that ?”

In her response, Baloyi says: “This is a statement made you know and with due respect – this is not true. It’s a lie, because I never had weekly meetings to discuss my performance or neither was I alerted that, you know, there are deficiencies. And for such an office with the position that I occupy and the level of my supervisors, surely there should have been documents. This process could have been documented quite well. So, if he says that there were meetings weekly, I am not aware of those meetings. Surely they should have been documents in my diary and the PPs diary, There should be records for such performances. And also the performance deficiencies that were there I am not aware of them.”

Baloyi rejected Mahlangu’s statement.  

The former COO also claimed that Mkhwebane fostered a culture of mistrust and insecurity in the Office. One of her claims was based on a WhatsApp text message she received from Mkhwebane soon after she became COO.

The text message dated 18 February 2019 warned Baloyi to be careful of two executive managers Futana Tebele and Pona Mogaladi.

The message formed part of Baloyi’s testimony. It says: “Coo, careful of Pona and Tebele but you are an adult be wise PP”,  reads Mkhwebane’s text message to Baloyi which was screened during the inquiry.

Mayosi wanted Baloyi to expand on Mkhwebane’s text message: “Are you able to recall, what led to this WhatsApp text message?” asked Mayosi.

Baloyi elaborates: “If you look at the date, it was when  I have just started in that office and it was a day after Mr Tebele and Miss Mogaladi were in  my office for a  period, they have been in a meeting  appraising me on certain matters and I can’t remember, but I was surprised you know,- that she could send me that  message, but my assumption was, you know,-  it was because of that – because I have just started and I didn’t know the individuals personally.” 

During cross-examination, tensions emerged between Advocate Dali Mpofu and Baloyi. Mpofu tried to discredit Baloyi’s claims that she was purged: “There were already some disagreements that you were having with Mr Mahlangu, Correct?

 Baloyi: “Correct”

 Mpofu: “And that would have been  about two months into the job, correct?”

 Baloyi: “Correct”

 Mpofu: “And this escalated, the high water mark would have been the July  Dashboard meeting that is now about almost on the six months,-  just before the six months mark. Correct?”

Baloyi: “Correct”

 “But you believe that you were purged?” Mpofu asked.

 Baloyi replied: “I don’t believe that I was purged. I was purged”

Mpofu: ” Ya, that’s what you believe. The thing is there are other people in the world who don’t believe you were purged, so I think I’m sure you will allow that. That was your view that you were purged it has not been objectively determined by anyone else objectively. It’s your own subjective view, correct?”

Baloyi disagrees. “Much as I heard what you are saying advocate Mpofu, I do not agree with you. There are people that could agree with me. So, I do not believe that you know,  if there are other people who believe that I was not purged,  I’m not sure who are you talking about and on what particular basis, because the merits of my case have not been dealt with. So, I’m not sure what is it you want to talk about when you say few people.  Who are you talking about here and where do they come from, where do they live, so it’s up to you you will definitely believe that I was not purged because you are representing the person that purge me. So, you are within your right not to  believe what I believe But it depends on the interest of the individual.”

‘Purged or believe was purged’ 

As the debate continued during cross-examination on whether she “was” purged or “believe” that she was purged, Baloyi stood firm that she was purged: “Even in my affidavit, I have stated  I have been purged. I didn’t say  I believe I’ve been purged. I  state that I’ve been purged and she might believe that she didn’t purge me. It’s still within her rights”, Baloyi emphasises.

Mpofu: “No, but that’s a lie Mam you did not say  that in your affidavit”

“Which Affidavit are you talking about now?”,  Baloyi asks Mpofu.

Mpofu asks back: “Which affidavit are YOU talking about?”

Baloyi says: ” I am asking you, because you are saying I’m lying and that you are talking about my affidavit. The onus is upon you to prove to me by reflecting on what you are talking about”

Mpofu insists: “Ok which affidavit were you talking about”

Baloyi: “I’m also asking you which affidavits were you referring to because now you have already indicated that I’m a liar”. 

The committee Chairperson intervened and Baloyi’s affidavit to the inquiry was screened. It reads that she “believes” that she was purged. However, it appeared that there were two affidavits making reference to the claim that she was purged. There is another affidavit to the court where she states that she was purged.

Mpofu: “When I started this questioning I said Mam, you believe you were purged and you said No, I do not believe I was purged, and on and on and on… Then I said to you there might be people that also don’t believe you were purged. Are you  denying  that that’s just what happened in front of everyone?”

Baloyi: ” That’s what I was asking you which affidavit are you referring to? because my court affidavit is this one. The real reason I was purged was because I was an obstacle. In this affidavit, I never said that I believe that I was purged. So, if you would have referred to the affidavit earlier, I would have said to you in my court affidavit, that I have stated that I was purged. In the  inquiry affidavit, I “believe” I was purged, So, if you would have been open with me, I would have given you the answer you  were looking for, or you are looking for now.”

“Ok, I think you are giving false evidence to this committee Mam, and it’s not a good thing. All you need to do is to accept that in your affidavit, you said you believed you were purged and I was quoting that but you were attacking me by saying you were purged, you don’t believe you were purged. That’s the truth. Anyone who’s listened to this who’s neutral will now realise that you are just making it up as you go along,” Mpofu continued to challenge Baloyi.

Baloyi again: “Advocate Mpofu I won’t actually argue with you on what you said, but you said to me when you asked the question. In your affidavit when I asked you which affidavit,- you can shake your head,- but in my affidavit, that’s what I was saying that I was purged. That’s why if you told me that  you know  you are referring me to which affidavit, I would have told you.”

‘My rights have been violated’ 

After Mpofu’s cross-examination, committee members also had an opportunity to ask clarity-seeking questions. The question about the purging of Baloyi was also brought to the fore by ANC MP Teliswa Mgweba: “Firstly, Miss Baloyi in your affidavit paragraph 3 you have stated that you believed that you were purged. And again in paragraph 4 you also stated that you were informed of your employment will not be confirmed beyond your probationary period. And during the day you have also indicated that you were never been assessed for your performance. So, Miss Baloyi do you believe that your rights were infringed?”

Baloyi: ” Yes, because I should have been dealt with in terms of, –  you know,- the prescripts that were there. And in essence even (when) some of the allegations were made around the non-confirmation of my appointment, I would have expected you know, –  that kind of office to be open with me and stipulate what those areas of misconduct are all about. Who has actually divulged certain information, to who, when? I mean when you deal with an employee obviously you know the facts could have been put up a front to me, but the manner in which this matter could have been dealt with for me was violating even my rights to say that you know,- a person that has been in the public service for years, with top security clearance,  I would have expected if it’s true, the matter be brought forward you know,- so that I could be able to defend (myself). And the manner in which you know,- issues unfolded with regards to you know,- when I was informed that my probation was not confirmed,  I didn’t see any reason why I should vacate the building,- you know,- and not even you know,- work throughout the week of October, as if  I was a risk. And for me, it was just a matter of humiliating me in essence. And yes in short yes, I felt my rights have been violated” said Baloyi

At the start f the inquiry, Baloyi indicated that she is now employed in Health Department in Gauteng. Before the hearing adjourned, Mpofu told Committee Chairperson Richard Dyantyi that they want Baloyi to return for further cross-examination. But Dyantyi said it will be assessed and it will be communicated to Mpofu.

Just before the meeting Evidence Leader Advocates, Ncumisa Mayosi indicated that there were no further questions for the witness.

However, Mpofu told the inquiry that his cross-examination of Baloyi is not complete.

 “I just wanted to register the fact that we have not finished our cross-examination with this witness and maybe you can indicate subject to whatever arrangements will be made with the evidence leaders, that we will take the opportunity to do so at a later stage,” Mpofu asked the Committee Chairperson.

Dyantyi told Mpofu that the recall of witnesses will be done differently: “Thank you Advocate Mpofu, in terms of the committee decision of last week we have enhanced our processes which indicates that, I hope that the team will be in touch with you, which indicates that where there will be a recall for a witness, we are going to require specific areas of focus and questions to that witness,  and so when we therefore based on that, –  we switch on the recall of the witness. So, there is going to be that interaction. At this stage this is where we leave the matter,” Dyantyi replied.

Mpofu asks: “Is that the new rule now Chairperson.”

Dyanti: “That’s the decision of our committee and I think we will have to make sure that you are fully vested with that. But, I have noted the points you have put on the table. Thank you very much, the meeting is adjourned”. Dyantyi concluded.

Ndou returns for cross-examination

Meanwhile, former Senior Manager in the Office of the Public Protector Reginald Ndou is expected back on the witness stand for further cross-examination when the committee resumes on Tuesday.

The inquiry ended abruptly on Thursday last week after Ndou was kicked off the virtual platform while he was still being cross-examined by Mpofu about the Vrede Dairy report.

Ndou’s cross-examination was interrupted after experiencing signal problems at a location from where he was testifying in the Eastern Cape. 

He will not only return for further cross-examination by Mpofu but also for a question-and-answer session with committee members after Mpofu has concluded cross-examine him.