In her replying affidavit, Baloyi said it was a matter that not only affected her, but was one which was also in the interests of the public.
Baloyi wants her labour dispute to be heard on an urgent basis.
“The Public Protector intentionally misunderstands the claim for urgency. While personal harm is not decisive of urgency, when combined with the clear public harm, the case is urgent.
“It is urgent because the relief sought is necessary in order to protect the integrity and independence of the Office of the Public Protector,” Baloyi said.
Baloyi has taken both Mkhwebane and Public Protector CEO Vusi Mahlangu to court over her axing, which she said was part of a purge.
Baloyi also wants the court to declare that Mkhwebane acted unconstitutionally, violating her obligations towards independence.
She said the two acted with ulterior motives in dismissing her and demonstrated these allege motives with examples of reports which, Baloyi said, Mkhwebane and Mhlangu unfairly prioritised while ignoring vital information to achieve personal goals.
“Not acting urgently would perpetuate a serious constitutional offence by a vital protector of our constitutional democracy,” Baloyi warned.
Mkhwebane wants the matter of her ” unconstitutional behaviour ” struck out because the allegations are “scandalous, vexatious and/or irrelevant”.
Baloyi said this was “understandable”: “Those allegations demonstrate that she and the CEO have abused their office… she had no answer on the facts, so she has no choice but to seek to strike out the averments,” Baloyi said, adding that the application has no merit.
“[The allegations] may vex the Public Protector, but it is no basis to strike out averments. An allegation that someone acted dishonestly and unlawfully, if relevant, cannot be struck out.”
Baloyi has taken Mkhwebane and Mahlangu to court over her axing, which she says was an abuse of power by the pair.
She demonstrated this by listing Mkhwebane’s handling of the Bosasa and so-called “rogue-unit” reports, which she previously said was “extremely unusual”.
While Mkhwebane said Executive Ethics Act investigations must be finalised within 30 days, Baloyi maintained that Mkhwebane unfairly prioritised these investigations without explanation.
Baloyi listed eight investigations concerning executive members of Parliament which were “simply not prioritised”, including investigations concerning Bathabile Dlamini, Faith Muthambi, Tina Joemat-Pettersson, Mildred Oliphant, David Mabuza, Ace Magashule, Jacob Zuma and Supra Mahumapelo.
“No steps were taken to expedite [these cases] or to prioritise them. No explanation is given whatsoever by the Public Protector [for] how the cases of Bosasa and [Public Enterprises Minister] Mr Pravin Gordhan, which came after these cases, received priority.
“In the answering affidavit, the Public Protector does not even deny that there were other Executive Ethics Act cases which did not receive priority, let alone give a justification why other ‘jumped the queue’. The strong inference, as submitted in the founding affidavit, is that certain persons were targeted for specific treatment.”
The matter is expected to commence on Tuesday.
In previous court papers, Baloyi alleged that Mkhwebane did not extend the scope of her investigation to President Cyril Ramaphosa once it came to light that the late Bosasa boss, Gavin Watson, also donated to Nkosazana Dlamini-Zuma (NDZ).
Mkhwebane said she did not extend the scope because it did not fall within the parameters of the complaint.
“This would have no bearing as to whether or not the president had misled Parliament in his questions and answer session”, she said.
But Baloyi said the complaint “related to whether or not the president had misled Parliament. It did not relate to donations received by President Cyril Ramaphosa or by his political party”, adding that she had previously raised this point with Mkhwebane.
Baloyi further questioned the grounds on which Mkhwebane investigated Ramaphosa.
“If the complaint… was limited to the alleged false statements made by the president in Parliament, then on what basis did the Public Protector investigate the campaign funding of Mr Ramaphosa?”
Since Mkhwebane decided the ANC presidency campaign funding should be investigated, then, according to Baloyi, “she was under obligation to investigate the funding also to the NDZ campaign”.
“This is why I have made the specific prayer for a declaratory order that the Public Protector should be directed to act independently as required by the Constitution.
“One of the reasons I was concerned about this matter and hence raised it with her was the public should not be left with the impression that certain cases are given priority and certain investigations do not follow the usual protocol.”
She added that the matter should have been referred to the police but Mkhwebane “simply never answers why she felt the need to assume jurisdiction over the issues relating to money laundering”.
Regarding the WhatsApp mp message that Mkhwebane sent to Baloyi in which Mkhwebane said: “I worked with few people to deal with the sabotage of the [Minister Pravin Gordhan] camp”, Baloyi stated that Mkhwebane did not explain the “camp” or the reference to sabotage within her office.
Underpinning these accusations was Baloyi’s assertion that she was unfairly dismissed, without assessments of her performance being given to her and “through an unconstitutional and irrational process”.
The reasons for her dismissal, which mainly concerns her skills to be in in the position of COO, were unfounded, Baloyi said, and “were manufactured after the event”.