The attack
Ngcukaitobi — for Baloyi — dwelt heavily on the merits of the case. The former chief operating officer, who was “very close to the facts”, alleged that Mkhwebane had selectively prioritised certain investigations and reports — in particular those involving President Cyril Ramaphosa, Public Enterprises Minister Pravin Gordhan and Robert Mcbride, the former head of the Independent Police Investigative Directorate.
Not only were these cases prioritised ahead of others, but when Baloyi raised a concern about why the sources of the donations to Ramaphosa’s CR17 campaign to be ANC president were being investigated, and not those of Nkosazana Dlamini-zuma’s campaign, she and another staff member were sidelined and “external people” were brought in for the investigation.
Ngcukaitobi repeated what Baloyi said in her founding affidavit: “This caused suspicion within staff members.” Worse, Mkhwebane had “aided and abetted” the unlawful conduct of her chief executive, Vussy Mahlangu, he said.
When Baloyi tried to stand up to the abuse, she was purged, said Ngcukaitobi. This is what this case is, at its heart, all about, he argued.
And when “very serious” allegations were raised in court papers with the public protector, they were not answered, said Ngcukaitobi.
Mkhwebane had said there was nothing unusual about the decision to reduce the internal Cr17/bosasa team substantially. This, she said, was “due to the high-profile and sensitive nature of an investigation involving the head of state”. One of the donors to the CR17 campaign was Gavin Watson, the chief executive of the allegedly corruption-tainted Bosasa.
But, said Ngcukaitobi, there was, for example, no answer “at all” as to why Mkhwebane had brought in “external people” and who these people were. “The public protector is a public functionary holding immense public power. She must explain, when there are allegations of selective targeting and selective prioritisation, why certain decisions have been made.” people to deal with the sabotage of the PG [Pravin Gordhan] camp ... It is not about you but one has to play the chess.”
In her answering affidavit, Mkhwebane had explained what she meant: “My reference to chess was obviously in respect of our defensive moves to counteract the sabotage and unwarranted attacks directed at the office of the public protector. If there was any alleged ‘game’ it was initiated by our assailants ...”
But, said Ngcukaitobi, this answer calls Gordhan “an assailant”, and describes him as someone who has sabotaged her office. Mkhwebane, with no evidence to back it up, says Gordhan had, at the time of the investigation, accused the public protector of corruption and being part of state capture. “The inevitable inference that your ladyship is left with, is that this is retaliation. One can never have a public protector who retaliates. One can never have a public protector who says ‘I am justified in playing a chess game against you as retaliation’.
“You do not play a chess game with public power,” said Ngcukaitobi, and the crowd went wild.