Video (Part 1)
Video (Part 2)
In a hybrid meeting, the Section 194 Committee met to continue day 22 of the Public Protector Inquiry hearings. The witness was Ms Basani Baloyi who was employed as Chief Operating Officer at Public Protector South Africa (PPSA) from 1 February 2019 until 31 October 2019.
The evidence leaders questioned Ms Baloyi on the lack of assessments on her performance, despite this being a condition of her probation; the lack of documentation of her performance, despite this being the reason for her non-confirmation of permanent employment as COO; about her fallout with then-PPSA CEO, Mr Vussy Mahlangu; her being “purged” from the Office of the Public Protector and the handling of the investigations on the so-called SARS rogue unit, CR17 Bosasa donation, an investigation into Ipid as well as Prasa.
During cross-examination by the Public Protector's legal team, Adv Dali Mpofu asked Ms Baloyi questions about refusing to take instructions which she deemed unlawful instructions, her probation, her statements about the PP being authoritarian, and the non-confirmation of her employment as COO.
Adv Mpofu accused Ms Baloyi of being a liar and changing her story as she went along, starting with the difference in semantics between “she was purged” versus “she believed she was purged” which had been referenced in her High Court affidavit and her affidavit to the Committee respectively.
Adv Mpofu took issue with referenced documents being shared on the screen during his cross examination, saying that he was testing the witness’ credibility. The Chairperson ruled that this was a parliamentary inquiry and the documents should be shown to allow the Committee to follow.
Adv Mpofu maintained that Ms Baloyi had been untruthful, dubbing her “the worst witness”. Ms Baloyi said that it was up to the Committee to assess if she had been truthful and assisted the inquiry. Adv Mpofu noted after being given extra time that he had not completed the cross-examination,
Committee members posed questions to the witness on how her relationship with the PP had changed over the course of her employment at PPSA, the PP’s personal agenda and ulterior motives, case backlog. Members asked about the PP’s management and leadership style, and how it contributed to a culture of victimisation, fear and intimidation, especially through the use of audi alteram partem letters. Other topics were the lack of Ms Baloyi’s performance appraisals, the extent of Mr Mahlangu’s involvement in cases and investigations, and whether Mr Mahlangu was merely following the PP’s instructions. During committee questions, a heated exchange occurred with Adv Mpofu telling a Member of Parliament to shut up.
The Chairperson welcomed all those in attendance, both in-person and on the virtual platform.
Ms Fatima Ebrahim swore in the witness, Ms Basani Baloyi.
Adv Mpofu raised an objection on the witness’ evidence, on grounds of being irrelevant to the matter brought before the Committee by Ms Natasha Mazzone and on legal and practical grounds. He referred to the Independent Panel Report, from page 10479, section (ix), paragraph 186, to page 10484. He said there were three main objections: the legal objection on relevance, a financial objection, as this process was wasting taxpayers’ money, and an objection to the time spent on the process.
The Chairperson appreciated Adv Mpofu’s consistency with his clearly defined objections to the relevance of the witnesses from the first day. He ruled that the Committee would proceed with the witness, while also noting Adv Mpofu’s objection.
Adv Mpofu noted the Chairperson’s comments.
Examination-in-chief of Witness: Basani Baloyi by evidence leader
Adv Nazreen Bawa said that Adv Mayosi would lead the questions for the evidence leaders.
Chairperson: Thank you very much. Adv Mayosi, I hand over to you and I'm hoping that as you start now almost 30 minutes later, we'll take you up to lunch and assess then, thank you
Evidence leader Adv Ncumisa Mayosi: Let's be hopeful, Chair. Thank you, members. Thank you Chair. Ms Basani Baloyi, are you there?
Ms Baloyi: Yes. Good morning, Advocate.
Adv Mayosi: Hello. So, you are presently employed as a Deputy-General in the Gauteng Department of Health, correct?
Ms Baloyi: Correct.
Chairperson: Deputy-General what?
Adv Mayosi: Deputy Director-
Adv Mpofu: I was also worried.
Chairperson: Also confirming that.
Adv Mayosi: Thank you. DDG, yes, yes. But you were employed in the Office of the Public Protector as the Chief Operations Officer, correct?
Ms Baloyi: Correct.
Adv Mayosi: You were employed in that capacity from 1 February 2019 until 31 October 2019, is that right?
Ms Baloyi: Correct.
Adv Mayosi: So you were you were employed on a fixed-term, five-year contract as the COO, correct?
Ms Baloyi: Correct.
Adv Mayosi: And what were your functions as a COO?
Ms Baloyi: I was coordinating investigations and also being a programme manager for the branch responsible for investigations.
Adv Mayosi: So who did you report to?
Ms Baloyi: On investigations, I reported directly to the Public Protector, and administration, I reported to Mr Vussy Mhlangu. And for the cases older than two years, I reported to the Deputy PP then.
Adv Mayosi: The CEO at the time was Mr Vussy Mhlangu. The Deputy PP at the time was... who was the DPP at the time? Was it Adv Kevin Malunga?
Ms Baloyi: Correct.
Adv Mayosi: All right. So you've explained who you reported to, but who reported to you?
Ms Baloyi: I had four executive managers that reported to me. That was Ms Pona Mogaladi, Ms Nelisiwe Thejane, Ms Nthoriseng Motsitsi and Adv Stoffel [Fourie].
Adv Mayosi: Right. So you made an affidavit for this inquiry with the assistance of the evidence leaders in order to assist this inquiry? Correct?
Ms Baloyi: Correct.
Adv Mayosi: And that's the affidavit that's actually up on the screen now. You say in paragraph three of that affidavit, that you make this affidavit to place before this inquiry, the reasons why you believe that you were purged from the PPSA by the PP and her former CEO, Mr Vussy Mahlangu. Do you see that?
Ms Baloyi: Yes.
Adv Mayosi: Now, Ms Baloyi, these are serious allegations. That's a serious allegation or claim to make. Do you stand by that claim?
Ms Baloyi: Yes.
Adv Mayosi: Okay.
Chairperson: I didn't get that. That went very quiet. Can you repeat that? Okay, just get closer to the mic. Thank you. Proceed, Adv Mayosi.
Adv Mayosi: And your answer was yes. Is that Is that correct?
Ms Baloyi: Yes.
Adv Mayosi: Yes. All right. So when you joined the PPSA as the COO in February, you joined on a fixed five-year contract, right? Ms Baloyi?
Ms Baloyi: Yes.
Adv Mayosi: You joined on a fixed, five-year term contract. Is that right?
Ms Baloyi: Yes, correct.
Adv Mayosi: And that would have been starting from February 2019 until 2024. Correct?
Ms Baloyi: Correct.
Adv Mayosi: [off-mic, to Ms Tshepo Morie, IT operator] Bundle A, page 2196. Got it? Just go down. So the fixed-term contract of employment that is up there on the screen, is that the contract that you signed?
Ms Baloyi: Correct?
Adv Mayosi: Is that the contract that you signed?
Ms Baloyi: Correct.
Adv Mayosi: And you were on probation, you say, for a period of, you say in paragraph four of your affidavit, that your contract had a probationary period of six months. Is that right?
Ms Baloyi: Correct.
Adv Mayosi: Right, so... So having started on 1 February 2019, your six months probationary period ended on 31 July 2019, right?
Ms Baloyi: Yes.
Adv Mayosi: Can I take you to paragraph five of your contract? Go back to the contract, page 2200. Yeah. So that's the contract. That's the provision that deals with your probation. Correct?
Ms Baloyi: Correct.
Adv Mayosi: It says in paragraph 5.1, you will be on a six-month probationary period, commencing from the date of your appointment, and your probation may be extended for a period of not more than 12 months. Do you see that?
Ms Baloyi: Yes.
Adv Mayosi: And then it says that during this probationary period, your conduct and work performance will be regularly appraised in order to determine your suitability for the post. Right?
Ms Baloyi: Correct.
Adv Mayosi: So you testified earlier, just now, that you reported to the PP for investigations, you reported to the CEO on administrative matters, and you said that you reported to the DPP in relation to cases older than two years. My question to you in, with reference to paragraph 5.1 of your contract is, was your conduct and work performance appraised at all during your probationary period?
Ms Baloyi: No.
Adv Mayosi: To determine your suitability for the post?
Ms Baloyi: No.
Adv Mayosi: By either the DPP, the PP or the CEO?
Ms Baloyi: No.
Adv Mayosi: You, as the COO, you attended Dashboard meetings, is that right?
Ms Baloyi: Correct.
Adv Mayosi: Was your performance and conduct not appraised during Dashboard meetings?
Ms Baloyi: The purpose of Dashboard meetings was not meant to assess my performance.
Adv Mayosi: What was the purpose?
Ms Baloyi: The Dashboard meetings were meant to deal with the progress, you know, on cases that we were dealing with. And we had a project plan on those particular cases. It was a meeting that was attended by other executives, so it was not meant for assessing my performance.
Adv Mayosi: Staying with your contract. Let's go to paragraph 5.4 of the contract, still dealing with the probationary period. It says that the employer shall provide all reasonable guidance and assistance to the employee to enable the employee to complete the probationary period successfully. Do you see that?
Ms Baloyi: Yes.
Adv Mayosi: Were you given any guidance and assistance during your probationary period to enable you to complete your probationary period successfully?
Ms Baloyi: No.
Adv Mayosi: And when you say no, what do you mean? What form was this guidance and assistance supposed to take? And why do you say it was not there?
Ms Baloyi: When you deal with the performance of an individual, you know, firstly, I had a performance agreement that I was supposed to be assessed on. This is a process that is also regulated, that, you know, I needed to have dates when I'm going to assess, which has never happened. I needed to have meetings, which I can tell you that I don't even have minutes of that. It could have been documents that I used to assess the performance, and also acknowledgement that indeed, this meeting happened, this was discussed and this is what we agreed upon. There was never such a process. So that's what I'm saying that it never happened. And most of the time, when you're talking about the Dashboard meetings, these are meetings that were attended by other people that were reporting to me, so it was not meant to assess my performance. As I said, that is the performance that I was supposed to be assessed on, should have been, obviously, based on my performance agreement and other commitments that I've made. To that effect, there should be proof that, you know, indeed this process was undertaken by the employer.
Adv Mayosi: All right, staying with your employment contract, again. Go to paragraph 5.5. It says there that the employee's appointment shall be confirmed at the end of the probationary period, once the employer is satisfied with the employee's level of performance. Do you see that?
Ms Baloyi: Yes.
Adv Mayosi: And you've already testified that your probationary period ended on 31 July 2019. So at the end of your period, then what happened?
Ms Baloyi: At the end of the period, nothing happened.
Adv Mayosi: All right. Can we go to LBB 15, page 2338. So on 8 October 2019, you received that letter, right?
Ms Baloyi: Yes.
Adv Mayosi: Go down to the end of the letter so we can check the date and the sender. That letter was from Mr Vussy Mahlangu, on 8 October, correct?
Ms Baloyi: Correct.
Adv Mayosi: Go back up, I want to read paragraph two of the letter. So the letter says in the title, that it's an invitation for you to make representations on confirmation of permanent employment. It says in paragraph two, that it's an invitation for you to make those representations on why your permanent employment with the PPSA should be confirmed. Do you see that?
Ms Baloyi: Yes.
Adv Mayosi: In paragraph four of the letter, Mr Mahlangu says one-on-one meetings were scheduled between you and the PP on a weekly basis. These meetings were aimed at improving performance. During these meetings, as well as impromptu meetings with him, the PPSA highlighted various performance deficiencies. Did these meetings occur? What do you say to that?
Ms Baloyi: This is a statement made and, you know, 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 there are deficiencies, and for such an office, with the position that I occupied, 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'm not aware of those meetings, surely, there would have been in my diary and the PP's diary, and there should be record for such performances. And also the performance deficiencies mentioned there, I'm not aware of them.
Adv Mayosi: Then he says in paragraph five, is that you will also recall that the PPSA invited you to make representations on why 'I should not take disciplinary action against you on a number of performance related matters. In this regard, I refer to the various audi and reprimand letters which were issued to you during this period'. Then he said he enclosed the copies thereof for your ease of reference, in light of the seriousness of these issues, raised in the letters, and having considered your representations thereto the PPSA finds it difficult to confirm your permanent employment. Do you have any comment to make to this?
Ms Baloyi: Yes. You know, the issue of audi was a norm, you know, you'll get... I've got even audis that are not even related to performance, outside one of those was an issue of Ms [Cleopatra] Mosana, you know, it was not related to performance. When the paragraph that reads, I mean, the statement that reads 'a number of performance-related matters'. For me this, this could not make sense. When I approached Mr Mahlangu himself, he says to me, unfortunately, I had to do this. And I also even raised it with Mr Gumbi [Tyelela] to say that, you know, given my background, and the fact that my trade is in human resources, you cannot make such a statement without validating it and I really do not understand. But Mr Mahlangu's response was, unfortunately, I have to do it. But I contended the fact that, you know, you cannot just give me a letter with serious allegations, which is not validated by facts. I think, to me, if it's an instruction from the PP, it's actually an unlawful instruction, because you are making allegations, which you are writing as a supervisor on matters that you don't even know and understand yourself.
Adv Mayosi: So Mr Mahlangu, then, his letter contained other allegations about your overall job performance. Go down. And he raised various issues about you and how you had conducted yourself as a COO. Ultimately, at the end of the letter, he invited you to make written representations by no later than two days later, 10 October, as to why your position should be… your contract should be confirmed. Is that right?
Ms Baloyi: Yes.
Adv Mayosi: So you responded on the same day. 2341. Next page. You responded on the same day to him. Right? And you requested an extension to respond to his letter. The extension you requested was to 22 October, correct?
Ms Baloyi: Correct.
Adv Mayosi: On 2342 Mr Mahlangu responded to you and he granted you an extension. But he did say in paragraph three of his letter that he thought the extension that you were asking for was a little bit excessive. He was going to grant you an extension until 15 October rather. Correct?
Ms Baloyi: Correct.
Adv Mayosi: Then you duly responded on 15 October 2019? Next page, 2344.
Ms Baloyi: Yes.
Adv Mayosi: Is that your response?
Ms Baloyi: Correct.
Adv Mayosi: In your response, you began to deal with the allegations that had been made by Mr Mahlangu in his letter, starting in paragraph three, where you disputed that the purpose of the Monday weekly meetings convened by the PP and attended by you, was for the purposes of assessing your performance. Is that right?
Ms Baloyi: Yes, I still dispute that, no, the meetings were not to assess my performance.
Adv Mayosi: In paragraph four of your response, you pointed out that you hadn't had scheduled meetings. Nor had you received any feedback about your performance and conduct. And no concerns had been raised in that regard. Is that correct?
Ms Baloyi: It's correct.
Adv Mayosi: In the last paragraph, in the last sentence of the paragraph, you say something about your performance agreement that you initiated the development of it, can you just elaborate for the Committee what that was about?
Ms Baloyi: That statement, Advocate, was meant to indicate that you are set to be assessed by something that even the person that aims to assess you does not even understand or does not know, for the mere fact that we never even discussed my deliverables. But I initiated a performance agreement, which I submitted to him. And he approved it as is, no amendments, or a comma, or a full stop. So I had that document, which clearly stipulated what is expected of him and myself, and he signed that performance agreement without even discussing it with me, because I gave him the document to review and engage as in a normal environment, and given the extent of work that I had to do. But instead we never discussed that performance agreement. He just signed it. The copy was sent to me and to HR for filing. I was trying to show him that, even if he gave me feedback, what would the feedback be based on because me and him never agreed even on standards. The things that are in my performance agreement clearly stipulated our expectations, which at that time, and on that day, I felt that he's not even living up to what he has signed for.
Adv Mayosi: And then in paragraph six of your response, you then dispute Mr Mahlangu's assertions about your defective interpersonal relations and some of the other allegations he made in paragraphs eight and nine of his letter to you, correct?
Ms Baloyi: Correct. Yes.
Adv Mayosi: And you set out in detail, in paragraph six, the basis upon which you dispute this, you set out your performance, you set out the efforts you made in dealing with the backlog project, which was a priority for the PP and the organisation. Is that right?
Ms Baloyi: Correct.
Adv Mayosi: And then you continue, basically, in that vein, in the rest of your letter, disputing his assertions and stating your assertion that there was no basis upon which your contract should not be confirmed. Is that right?
Ms Baloyi: Correct.
Adv Mayosi: And then you received a response from Mr Mahlangu. LBB 19, 2350. On 21 October, which was titled Non-Confirmation of Permanent Employment. Correct?
Ms Baloyi: Correct.
Adv Mayosi: And in paragraph three of that response, he says, after careful consideration and an objective assessment of your performance, the PPSA is of the view that you are not suitable for the role of COO, taking into account your overall capabilities, skills, performance and general conduct in relation to the position. He continues in paragraph fou, to say that it's with regret to have to tell you that the PPSA is unable to confirm your appointment. And in paragraph five, he says your official last working day last working day will be the end of October. However, you are recused from presenting yourself for active duty and from performing your ordinary responsibilities and functions as COO as from the date of that letter. So with immediate effect, you're recused from having to come to work until the termination date, is that right?
Ms Baloyi: Correct.
Adv Mayosi: What happened after that, can you tell the Committee what transpired after that, after your receipt of this letter?
Ms Baloyi: When Mr Mahlangu gave me this letter, I was with Mr Gumbi who was heading HR, and I actually raised with him, that what you are doing, it's actually illegal and that you have not complied with your own policies, you are not even complying with the law. Mr Mahlangu said to me, 'Anyway, take this letter and leave the Office, because I will also leave this institution, I know'. So I said to him why should I leave the building, because I'm not a threat. This is an issue of performance. You and I know that what is contained in this document, it's not true. You know very well, when you speak of interpersonal relations – with who? None of my executive managers, you know, complained about my management or my leadership, no one lodged a formal grievance against me, related to interpersonal skills, and I still get along very well. I think it's also very much important for this Committee to know that I still have a good relationship with my colleagues in that institution. However, Advocate, when I received that letter, I said to Mr Gumbi, can I go through the policy again on probation, on disciplinary matters, and when I looked at that, I realised that, you know, none of those policies, which the Public Protector signed, are complied with. I was naive, you know, to also believe that I can talk to her about it. I called, she never answered. On my way back to the office, I met her in the corridor with her security guards and I actually confronted her, and I said to her why are you doing this to me? You know, she acted surprised that she doesn't know. I said I've received this letter from the CEO and I'm dismissed with immediate effect, and I am supposed to leave the building with immediate effect. Why am I treated like a thief? I mean, I didn't steal from anyone. I believe that the decent thing that you could have done was to actually give me the letters, even if I had to walk next door to Woolworths. Those were my words, because I've got an eight-year-old, but I don't think this is how we should treat people. So then she looked, she said, where's the letter? I showed her the letter. Then she said, because now I was speaking at the top of my voice, colleagues started to come out of the office, and we went to the office of the Director: Legal Services. That's when she inserted that matter to say that I can appeal to her within five working days. But the question is, when you look into how this matter unfolded, you can see that there was a concerted effort, regardless of what I did, without following even the internal policies that they have approved themselves – there was a concerted effort to get rid of me.
Adv Mayosi: So when you're referring to something she inserted are you... LBB 20, 2352. That's still the letter that Mr Mahlangu addressed to you. Go down to the end. 2353. When you alluded to something that she inserted there, are you talking about that handwritten note at the bottom?
Ms Baloyi: Yes.
Adv Mayosi: Okay. Can you explain how that came about?
Ms Baloyi: It came about after I confronted the Public Protector about this matter, as I stated, and then we walked into the office, and that's when that was being written to me. The question, the issue that I have, is that if I did not meet with her is that there was not even going to be an appeal process. My view was that, and at the time Mr Mahlangu was not delegated, you know, the delegation framework was not signed. It was still a matter that was still discussed in our meeting. So he did not have delegated authority to deal with this matter. As I stated earlier, he didn't even have facts, as far as my performance is concerned.
Adv Mayosi: So then you officially stopped working at the PPSA on 31 October, correct?
Ms Baloyi: Yes.
Adv Mayosi: After that you instituted litigation against the PP and the CEO, both in their official and personal capacities, regarding the matter? Correct?
Ms Baloyi: Correct.
Adv Mayosi: In the North Gauteng High Court?
Ms Baloyi: Correct.
Adv Mayosi: Go down to page 2155.
Chairperson: Ms Baloyi, just speak through the Chair. And Adv Mayosi we don't hear where you are pointing.
Adv Mayosi: Thank you, Chair. Page 2155. So you instituted proceedings against them, both in their personal and official capacity capacities? Right?
Ms Baloyi: Correct.
Adv Mayosi: And there, you asked the court, the North Gauteng High Court, for the orders that are stated, basically from paragraphs two to six of the notice of motion. You wanted an order declaring her decision to terminate you unconstitutional, directing the decision to terminate you to be set aside, and reinstating you in your position, prohibiting her, the CEO, or anyone else acting under the authority, from unlawfully interfering with duly assigned functions and so on, up to paragraph six, is that correct.
Ms Baloyi: Correct.
Adv Mayosi: In that application, you contended, as you still say you believe here in your affidavit made in this inquiry, that the real reasons for the decision not to confirm your permanent employment, were not related to your performance in the time that you were there at the PPSA. You said, as you say here, that the real reasons emanated from a desire to purge you from the institution, is that correct?
Ms Baloyi: Correct.
Adv Mayosi: And do you still remain of that view?
Ms Baloyi: Yes.
Adv Mayosi: You made an affidavit in that application, where this is one of the contentions you made, amongst others that we will go through now, is that right?
Ms Baloyi: Yes.
Adv Mayosi: And Mr… and the PP opposed the application and also filed an extensive application affidavit correct, which was also confirmed by Mr Mahlangu. Is that right?
Ms Baloyi: Correct.
Adv Mayosi: Now the PP in her affidavit raised a number of preliminary points or points in limine, as lawyers like to call them. One of the points that she did raise was to challenge the jurisdiction of the North Gauteng High Court to entertain the matter, correct?
Ms Baloyi: Correct.
Adv Mayosi: Then in December 2019 your application was dismissed by the High Court with costs, correct?
Ms Baloyi: Correct.
Adv Mayosi: You then sought leave to appeal directly to the Constitutional Court. The Constitutional Court granted you leave to appeal to it, but only in relation to the High Court's finding on the jurisdiction issue, is that right?
Ms Baloyi: Correct.
Adv Mayosi: And the Constitutional Court remitted, or sent back the matter to the High Court to determine the merits, as well as the costs of the hearing in the High Court. Is that right?
Ms Baloyi: Correct.
Adv Mayosi: And the PP in the Constitutional Court was ordered to pay your costs, as well. Right?
Ms Baloyi: Correct.
Adv Mayosi: What has since transpired in relation to this litigation?
Ms Baloyi: Chairperson, I would like to read a letter that would stipulate where we are, as far as this matter is concerned.
Chairperson: Just before you read that letter. Do we have that letter? Adv Mayosi?
Adv Mayosi: We, the evidence leaders don't have that letter. But that letter is in the possession of the PP's team, I believe because it was addressed by Seneago Attorneys to the witness. Perhaps they could assist with actually what the question is about. Letter aside, with what the question is about as to where that litigation is – information that is within the PP's team.
Chairperson: Adv Mpofu.
Adv Mpofu: Chairperson, Adv Mayosi should know better. That's not how it works. If her witness, she's leading a witness, if the witness says she's going to read something, she should then apprise both us and yourself, Chairperson, as to what that is, and whether it's in front of the Committee or us. The fact that it may have emanated from whoever 100 years ago is completely irrelevant. It's a question of whether it's before this particular Committee, in the usual…
Chairperson: Sure. Yeah, no, thank you for that. I think that's a proper intervention. Can I get, Adv Mayosi?
Adv Mayosi: Letter aside, is the witness permitted to say what is happening with the litigation, without putting up a letter or evidence?
Chairperson: No. Are we, before you go there, are we able to get the letter? If everybody else has the letter. And she could even read it later, if we all have the letter that there has to be… [Adv Mpofu: Chair] No, I'm in the middle of my talk, Adv Mpofu. [Adv Mpofu: No, fine.] Are we, can we have that letter, if she has to read that letter, otherwise she… we have created a practice here, that we don't just allow people to surprise each other here. And I'd want to stick to that.
Adv Mpofu: Can I say something?
Chairperson: Yes. Yes. Adv Mpofu.
Adv Mpofu: Thank you. Yes. No, I think the issue… It looks like Adv Mayosi is providing a solution. We're not objecting to the question or the answer. They were just talking about the issue of the letter. So if the question can be answered without reference to the letter, then we can…
Chairperson: Sure, okay. Happy with that that. Proceed, Adv Mayosi.
Adv Mayosi: Ms Baloyi, you heard the interaction. Neither of us, either the evidence leaders or Adv Mpofu, are in possession of the letter, can you just apprise the Committee as to where, what the progress of the litigation is, without referring to a letter? This is information that should be in your knowledge, as to where the litigation is presently.
Ms Baloyi: We are currently in discussion with the Office of the Public Protector. They have proposed, you know, an out-of-court settlement, which I've since given my attorneys of record, an instruction to proceed and engage with the Office of the Public Protector. That's where the letter is.
Adv Mayosi: Who initiated those settlement discussions?
Ms Baloyi: It was Public Protector South Africa Office.
Adv Mayosi: Can you tell the Committee of the date when those discussions were initiated?
Ms Baloyi: The 22nd of July 2022.
Adv Mayosi: Thank you. The High Court affidavit, Bundle A. So turning to the affidavit you made in the High Court, and of course, it's on the record that the PP filed an opposing affidavit and much of what you say in this affidavit is heavily disputed by the PP, but taking for the moment what it is that you say in your affidavit. You say in paragraph 19, you describe in detail, the process of investigation. You outline the process that an investigation in the PPSA follows. You set out step-by-step how it goes from being assigned to an investigator, it goes to a chief investigator, from that to the provincial representative, and the executive manager, and how it would eventually get up to you, as the COO. Do you see that?
Ms Baloyi: Yes.
Adv Mayosi: And how it would ultimately go off to the Public Protector and be signed off by her, after it was quality assured. Do you see that account?
Ms Baloyi: Yes.
Adv Mayosi: And you say, ultimately, in your paragraph 19 or 20 of that affidavit, that the CEO, there is no role for the CEO in this process, because he's not concerned with the merits of investigations, correct?
Ms Baloyi: Correct.
Adv Mayosi: But you also say in paragraph 21, that sometimes this process wasn't followed, and it was short circuited sometimes, as you put it, correct?
Ms Baloyi: Correct.
Adv Mayosi: And then, of course, in paragraph 22, you also make reference to the backlog of cases that you found at the PPSA, when you joined. Can you can you elaborate a bit for the Committee about that, because this is a theme that has found its way into the evidence of other witnesses. Just the backlog that you found, and what systems, if any, you put in place to deal with it when you arrived?
Ms Baloyi: Thank you, Chair. When I arrived, there was a number of cases that were classified as older than two years. And remember that I started in February, and we're approaching the end of the year by the 31st of March. And I had to deal with those particular cases. The first thing that I did was to understand who's responsible for each case, and what is the background on these particular cases. And I developed a project plan, which was submitted to both, to all, actually, the Public Protector, the Deputy Public Protector, and the CEO, and it was approved at that level, even on the approach. So what we started doing with a team, was to look into those cases and come up with an approach of resolving them, for instance, with regards to the cases that were, you know, in the terrain of the Department of Home Affairs, we looked at them, and then we assigned officials, and we engaged with Home Affairs to clear that backlog. You know, we also had cases related to supply chain management, where there were delays or disputes in terms of payment, and would engage the Directors-General of various departments to ensure that the matters were resolved. Some of them were resolved, some didn't even need a detailed investigation, you could mediate, for instance, I remember that some of those issues related to SAA, South African Airways. So we had a lot of those matters, that we resolved within that short space of time. So when you look into all these cases, Chairperson, there, the wheel that is normally displayed about the performance in the Office of the Public Protector, cannot be attributed to an individual, that is teamwork, starting from customer services all investigators, chief investigators, executives, managers it was a team effort. And I believe that I have done extremely well in those circumstances, because most of the people that were not, if I may call it, even interested in dealing with some of the issues. But we persuaded them, we put in long hours to deal with those matters. And we all, at the end of the day, after persuading each other that there is a need because of the nature of work and the people that are affected, that we resolve them. So that's how we successfully dealt with those cases. If there's credit that needs to be given, it should be a teamwork. It shouldn't even go to an individual per se, but I can assure you that it was not something that could even be done during normal waking hours. We put in long hours, and it was a time when load-shedding started. We spent our weekends in the office after church on Sunday. So that's how we worked on those particular cases. And in addition to that, if that was really a challenge if you go through the records of the very same office, I was commended in a meeting that I've done extremely well. The Public Protector even went on record to tell Mr Mahlangu that this is not your performance, these are performance of a COO. So I'm surprised that all of a sudden, then the issues around performance came out after we have dealt with that matter, on a matter that is highly publicised. You know, when you look into the performance of that office, that today we conveniently want to forget that it was a team effort that led to that kind of work. And I still believe, and I can even confidently say that I find it very surprising, that that performance could be attributed to particular individuals. And I can say again, Chairperson, that was the work team, regardless of the IT system being down in most instances, but the team worked very well on those cases; hence we managed to achieve those within a short space of time.
Adv Mayosi: And you say in your affidavit, obviously, together with your evidence now, that it was all teamwork, you say that in dealing with that backlog, you managed in the short space of time that you were at the PPSA, to resolve 284, 63% of the backlog of cases in the first two months when you were there. And since then, after the end of that financial year, you managed to finalise a further 83 cases, this is what you say in paragraph 22. Is that right?
Ms Baloyi: Correct.
Adv Mayosi: And you attribute that strongly now in your evidence to not just you, but to the work of the team, correct?
Ms Baloyi: Correct.
Adv Mayosi: In the next section of your affidavit before the High Court, you then highlight various issues that you identified as being disagreements with the CEO and the Public Protector. And whilst you say in paragraph 23, that neither one of them ever identified specific instances of misconduct or incapacity on your part that would justify terminating or not confirming your contract, there were, nevertheless, disagreements with them in the ordinary working environment, which you did not regard as particularly serious, is that correct?
Ms Baloyi: Correct.
Adv Mayosi: You do, nevertheless, highlight four instances of disagreements, which you say contributed to the fallout in the relationship between you and the CEO. Is that right?
Ms Baloyi: Correct.
Adv Mayosi: Chair, the record in this affidavit has two pages that are missing. And so it's going to be difficult to follow this record. We asked the PP's team to provide us with the other, with the original affidavit that has the complete affidavit. I'm just going to put that one forward. Right. So the first instance that you mentioned as being an area… oh, just before we go to the first instance that that you mentioned. In paragraph 24, you say that you were seen as a stumbling block at the office, and that the CEO, in fact, told you once that he was going to "get you". Are you able to recall the context in which that statement was made? That he was going to get you?
Ms Baloyi: The statement was made when I called the meeting of investigators that dealt with the Nkwinti matter, which is the former Minister in Rural Development. What happened was the team investigating that matter, in particular the senior investigator and the chief investigator, could not agree on certain matters. Therefore, we, I convened that meeting, and in that meeting asked what needed to go into the Section 7(9) report. And in that discussion, then it was to integrate the Deloitte Report which was submitted by Minister [Gugile] Nkwinti to the Office then, which implicated Mr Mahlangu. And his assertion was that I called that meeting just to disrespect him or ridicule him or to lay bare matters of his past to the team. I explained to him that if I had bad intentions, why should I call a meeting. That meeting is meant to deal with a particular case. I don't think that you should be worried. In essence, you are conflicted because of this matter you are close to in terms of the allegations laid out. So that's when you know, the trouble started.
Adv Mayosi: The first incident…
Adv Mpofu: Chair, sorry Chair. My hand has been up. I wanted to just check with Adv Mayosi how she identifies those missing documents, whether we shouldn't give them page numbers.
Adv Mayosi: They are in Bundle E, Item 9. They were furnished to us yesterday.
Adv Mpofu: Yeah, I know. I'm saying, how do you... no, I'm saying, are you going to allocate page numbers to them? Like 2164B and 2164C or something, so that the thing can flow?
Adv Mayosi: Yeah, we can insert that, Adv Mpofu. I think that's a wise suggestion.
Adv Mpofu: Yeah, we call the one, 216…
Adv Mayosi: Okay, so we have page seven of the affidavit. Right?
Adv Mpofu: Yeah. Typed page seven.
Adv Mayosi: Yes. Typed page seven, it's page 2165.
Adv Mpofu: Yeah.
Adv Mayosi: So I think the ones we're inserting, which is typed page eight.
Adv Mpofu: So make that 2165B.
Adv Mayosi: B. Yes.
Adv Mpofu: And the other one?
Adv Mayosi: Typed page 9, C.
Adv Mpofu: Okay. 2165C.
Adv Mayosi: And then typed page 10 is there. So we’re missing only two pages, which is 8 and 9.
Adv Mpofu: Yeah, so typed page 10 is there from 2166.
Adv Mayosi: 2166 is there in the record.
Adv Mpofu: Thank you. Thank you, Chair.
Adv Mayosi: Thank you.
Chairperson: Thank you for the intervention. Please proceed, Adv Mayosi.
Adv Mayosi: Thank you. We are currently on page 2165. We're about to move over the page to 2165B. Ms Baloyi is about to tell the Committee about what she identifies as the first incident, or fallout between her and the CEO, in the organisation. It starts at 2165, which we have on record, and it moves on to new page 2165B. Ms Baloyi, can you tell the Committee about why it is that you refer to the July Dashboard meeting and your handling of backlog / old cases as being one of the issues that arose between you and the CEO?
Ms Baloyi: It was a very interesting day because of, you know, normally the Dashboard meetings were chaired by the PP. We went there, the meeting was now chaired by the Chief of Staff, together with Mr Mahlangu. The introduction was more of an anomaly, you know, in the manner in which we normally deal with Dashboard cases, I mean, like the Dashboard meetings which were dealing with those cases. In the first place, we were just told that we have not achieved our targets That meeting started on that note, without even interrogating as to why we are at the point we are at. But it was my leadership that was also questioned in there, which even went to the extent of telling us that the lunch that is arranged is for people that are not performing, and we are just there to eat and waste money whilst we are not performing. I requested that we be given an opportunity to present the reasons why we could not perform well on some on some of the cases, and the executive managers must do representations as to where are we at the moment, and why these cases are not concluded on time. Then in the meeting there was also an allegation that was made was that Ms [Ponatshego] Mogaladi and myself tried to change the minutes and the dates of submissions with the Chief of Staff's PA. That was not true, we met, when we received the minutes of the previous meeting, we realised that there was a mix-up on cases and also on dates. And when we explained to her, she said, I don't understand, so we met with her and we discussed which paragraph because we did it in a tabular format to say that this is a case that is handled by Mr [Godwin] Kock and it was due when and this is the progress that we have made thus far. But then in that meeting, we're accused that we dealt with the minutes to shift to the dates, which was not the truth. So then, when we're presenting this, the Chief of Staff informed us to go to our offices and attend to matters, and that we are not serious and all sorts of things were stated. However, I presented my case, to say that with some of these cases that we are dealing with, we have gone to all the investigators and spoke to them about the quality of work, and I was not happy. And in some of those meetings, some of the investigators even indicated to say you must choose between whether you want quantity or quality. So we might decide even to ignore certain information because you are rushing for a due date, and that's when they explained their challenges. The Executive Manager: Administrative Justice and Service Delivery (AJSD), Ms Mogaladi, also presented a case to say that her investigators are not coping with the work. Some of those cases are too difficult because they are too old and the information that is required, requires extensive investigations. Then also the executive manager responsible for provincial integration, Ms Thejane, also indicated that there's a lot of work that needs to be done; we need to minimise the number of meetings because that's what some of the investigators in provinces raised and even the ones that were in head office. In that meeting it was a meeting where we were all presenting the challenges that we had. But that meeting was chaired or was conducted in a manner, that regardless of what we were to say, we're still labelled as being difficult, not wanting to work and that work is impossible. But also the challenge that I can say to Chairperson and the Committee, I told Mr Mahlangu that you are talking about something that you do not know, but if you were to talk to these investigators, as an accounting officer, you would ultimately understand some of these challenges. But you could see that there was a concerted effort to press us or to... [Mr S Jafta (ANC) unmuted briefly]
Chairperson: Please conclude:
Ms Baloyi: Yes, to say that the work could be done in that particular period; that when things happened differently that at the end of the day we need to deal with those matters. And it was after some of the issues that I've raised with him, which he said even in his language, was that awusafundi sekuza thoba [you are not learning to bow down (be humble)] and not…
Adv Mayosi: Sorry, who are you talking about now, who said that?
Ms Baloyi: Mr Mahlangu said awusafundi sekuza thoba, and I said to him, these are performance issues, these are matters that I think you've got a responsibility, as an accounting officer, to create an environment for us to perform and actually even understand what you are dealing with, and assist in the process. But for me, it's the unfounded allegations you are making, and I find it, you know, very difficult that a person at your level can make such statements which are unfounded, or which could not even be validated by information.
Adv Mayosi: So in your affidavit in paragraph 26. What you point out as having been a major difficulty between you and the CEO that arose from the meeting, is that he complained about you altering deadlines that were set by executive managers, and your failure to take action against the executive managers, is that right?
Ms Baloyi: Correct.
Adv Mayosi: Then after the meeting, did you have a discussion with the executive managers at all; what happened after the meeting?
Ms Baloyi: We discussed it with the executive managers and that I was instructed in that meeting that I must take corrective action against the executive managers.
Adv Mayosi: And did you do so?
Ms Baloyi: I did.
Adv Mayosi: Right. You say in paragraph 27, you sent letters to all the executive managers. LBB 3, it's at 2241. The question is, did you take action against the executive managers? Can you elaborate and tell the Committee about that?
Ms Baloyi: After the said Dashboard meeting, we met with the executive managers, we looked into the challenges, and these executive managers acknowledged that 'there is nothing that you can do because you have been given an instruction to take appropriate action against us, give us the letters'.
Adv Mayosi: Is it they themselves who invited you to give them the letters?
Ms Baloyi: Yes.
Adv Mayosi: Why?
Ms Baloyi: When we're discussing with them, I said, no, I will still wait to make a representation on what we've discussed, because one doesn't have to agree to something that we know we're not going to achieve. We'll have to present a proper report, because what we did was to look into we went on to prepare a report that indicated which of those cases were difficult to deal with within a short space of time and what are the challenges. When I was doing that, I sensed in that meeting, that they knew something or they were adamant that 'give us the letter so that you don't get into trouble'. And I hesitantly did so because it was even an instruction from the CEO. When I assessed what happened, I finally decided that I will give them the letters, and we'll try to make that report later. But it was not really, I mean, a good experience, if I may call it that. I had to issue letters under those circumstances. But, anyway, as audi letters were a norm, I did it.
Adv Mayosi: Right. So the letters you're speaking about in paragraph 27, is the letter that we're looking at on page 2241. This particular one was addressed to Adv Fourie, correct?
Ms Baloyi: Yes.
Adv Mayosi: Who was the Executive Manager: Provincial Inland Investigations. Correct?
Ms Baloyi: Yes.
Adv Mayosi: Right. Go to 2243. You issued another one to Ms Motsitsi, Executive Manager: CSM, right?
Ms Baloyi: Correct.
Adv Mayosi: The next one at 2245 was to Ms Thejane, Executive Manager: PII?
Ms Baloyi: Correct.
Adv Mayosi: And then the next one, 2247, to Ms Mogaladi, Executive Manager: AJSD and GGI [Good Governance and Integrity Unit]. Go to the end of that letter to see the date. These letters you issued them all on 6 August 2019, after the July Dashboard meeting, is that right?
Ms Baloyi: Correct.
Adv Mayosi: Then in paragraph 20 of your affidavit, you speak of a letter you got from the CEO, the newly paginated 2165B, paragraph 20-28. You speak of a letter that you then got from the CEO.
Ms Baloyi: Yes.
Adv Mayosi: Right. In which he was telling you what he had resolved about what needed you needed to do to avoid future non-compliances. And following on from his unhappiness with you about altering of deadlines, he told you that you would be required to refrain from changing targets without consulting him and the Public Protector, correct?
Ms Baloyi: Yes, that's what was in the letter.
Adv Mayosi: And is that the letter? [referring to the document shared on the screen]
Ms Baloyi: Yes.
Adv Mayosi: All right. So you say in paragraph 29, that you then comply with these requirements. And in fact, on 10 October, you sent even more written warnings to the executive managers again, which appear on LBB 5 on 2250. You sent more written warnings to the executive managers in October again?
Ms Baloyi: Correct.
Adv Mayosi: Right. So that's the first issue that you state as an example of your disagreements or fallout with the CEO. The second issue that you mentioned in your affidavit on page 2215C, in paragraph 31, is about a complaint lodged by a Mr [James] Wickstrom that had been outstanding for several years, after you arrived at the institution. Can you briefly take the Committee through why that became an issue between you and the CEO?
Ms Baloyi: This became an issue because he was saying to me that he has sent emails to Ms Mogaladi around the matter of James Wickstrom. She's not responding to this matter, and I must take appropriate action against her. I said to him why should I actually take appropriate action against her for not responding to her email. Then I spoke to Ms Mogaladi as to why she's not responding to the emails. And Ms Mogaladi says 'it's because this was long dealt with even before your time, and if he if he asked me correctly, even for that information, I could have responded accordingly'. So when I even said to him, 'Mr Mahlangu, I think when you want me to deal with the executive managers non-performance or non-responsiveness, it will be good if you also talk to me about these issues and about how he went about it'. But you know, he was adamant that there was something wrong that Ms Mogaladi did, without even verifying his facts
Adv Mayosi: Right. So in your affidavit, you mentioned other incidents, two other incidents, and I'm not going to... I understand that it's your evidence that the incident... between the provincial representative Ms Winnie Manyathela and Ms Thejane was also one of the issues that arose between you and the CEO. Correct?
Ms Baloyi: Correct.
Adv Mayosi: And the manner in which you dealt with, you handled Ms Mosana's resignation was also an issue between you and the CEO, correct?
Ms Baloyi: Correct.
Adv Mayosi: In the interest of time, Ms Baloyi, I'm not going to deal with those issues, they are in your evidence. I want to move on to the other issues that you say became problematic in the Office of the PP between you and the CEO and the PP at the time.
Chairperson: Just before you move. We'll take a tea break for 15 minutes. Thank you, colleagues.
Chairperson: Welcome back. Ms Baloyi, are you there?
Ms Baloyi: Yes, Chair.
Chairperson: Thank you. Welcome back. We proceed. I recognise Adv Mayosi.
Adv Mayosi: Thank you, Chair. Thank you, Ms Baloyi. Let's continue. With your founding affidavit in the High Court matter where you identified what you said was unconstitutional behaviour on the part of the PP and the CEO from paragraphs 39, 40 and onwards. You specifically picked out certain investigations as an illustration of this conduct. Do you see that?
Ms Baloyi: Yes.
Adv Mayosi: You said that in relation to those investigations, by way of illustration, their behaviour both in relation to the reports and the timing of the release of those reports was… you found that behaviour / conduct problematic starting with the Nkwinti investigation. Can you elaborate for the Committee why you found the behaviour of the CEO or PP problematic, in the conduct of that investigation?
Ms Baloyi: Chair, as I indicated earlier, Mr Mahlangu was interested in what needs to go into that report and what doesn't need to go into that report. The other discomforting matter for me was he was discussing pertinent issues with a senior investigator about what needs to be excluded from the report. In the fact that we will meet the four of us, myself, the executive manager, chief investigator and the senior investigator, look at this case, and agree on what needs to go into that report. Then later on, we will realise that the senior investigator, Mr Kock, changed that particular report. Then when you ask him questions, you could not even find an answer. What disturbs me the most was the fact that Mr Mahlangu said to me, when I reprimanded Mr Kock verbally that we spent hours on a report and then he goes back and changes what we have agreed upon. And, interestingly, Mr Mahlangu confronted me and said that I must stop ill-treating Kock. I said I'm not ill-treating him, I don't even have an intention, because he's doing work that is reflecting on what is expected of me. But what I do not like is how he deals with these matters. I will guide him, and then he comes back and consults with you and you deal with this matter differently. The fact that he didn't even consider... confronting myself, even when he confronted the chief investigator and the executive manager, wanting to influence what the outcome of that report should look like, which for me, it was interference. That was obviously conflicted, because it was a matter that was involving him directly. So there was his allegation that I did it deliberately wanting to embarrass him. From that angle, what worries me the most was that he received secondhand information, before making those kind of allegations. I indicated that I was dealing with that matter openly as I have dealt with certain meetings before. If you talk about high level cases, the Mpumalanga one was a high-level case, because it involves the sitting deputy president of the country, Mr David Mabuza. These two cases, where an executive management ethics breach – how to deal with him. So I find it very difficult that we needed to be selective. But for me, in terms of principle, was that if the need arises, then I will have to deal with matters the way I deem fit, so that we ensure that we come up with a well-informed report and that colleagues can contribute towards that. So there was nothing amiss about it, but that was one of the allegations that he made note around me that I am up to something just to embarrass him. I raised this matter with the Public Protector. And her response, she was, she knew what I was talking about. She told me to do my work, and that I needed to finalise this report of Nkwinti, because it's related to the permanent appointment of Mr Mahlangu. That's when ultimately I had to understand that there was a matter of Mr Mahlangu, that was in the bargaining council, that has been dealt with in the bargaining council, and it's actually on the court roll. I looked into that matter, and that's when I got record of that particular case. I felt the manner in which we're dealing with this particular case, I do not believe it's correct, because they both knew what my concerns were and I find myself in that difficult position. Now the allegations, to me started to make sense, why he was making those allegations that I have an agenda, which I did not have, because I do not know Minister Nkwinti from a bar of soap. I was trying to do my work. When I looked into that record, that's when I understood what the matter was all about. For me, Chairperson, I was about doing my work. And I have no intention of destroying anyone, but the manner in which this matter was handled, I was very much uncomfortable. That is one of those that created tension in the office.
Adv Mayosi: And you say in paragraph 55, that you believe that the position you adopted in the Nkwinti investigation caused or contributed to the deterioration of your relationship with the CEO, is that right?
Ms Baloyi: Correct.
Adv Mayosi: What was the issue with the draft Deloitte Report in that investigation?
Ms Baloyi: The draft Deloitte Report implicated Mr Mahlangu for wrongdoing in that report, and he was of the view that that content should not be part of the Section 7-9.
Adv Mayosi: That was his view?
Ms Baloyi: Yes.
Adv Mayosi: Is that one of the instances where you felt, one, he interfered in the investigation, and two, this was wrong because he was conflicted?
Ms Baloyi: Yes. And he wanted that copy of the report from me at the time, and I couldn't give it to him.
Adv Mayosi: All right. So in addition to Nkwinti matter, you also mentioned, you make reference to the Bosasa investigation and what you refer to as the rogue unit investigation has also been problem areas in the organisation, insofar as the CEO and/or the PP. Can you start briefly explaining to the Committee why you found the conduct problematic in relation to Bosasa?
Ms Baloyi: With regards to Bosasa, I speak of the fact that this is a matter that fell within the ambit of the executive manager responsible for AJSD. We looked into the complaint as a collective. It was myself, Ms Mogaladi and you know, the late Madiba around it. And when you look into the complaint, we looked at it to say that maybe what we needed to do was to advise, Mr Rodney [Mataboge] was dealing with that matter, that the complaint is around R500 000. When you look into the approach that was taken then by Mr Mataboge because of Mr Mataboge reported to Ms Mogaladi. So we tried to advise on the matter. The first one is the one currently on paragraph 60 that, when you look into the complaint, the complaint focuses on the R500 000 and that, given the nature of… the manner in which the investigation has started, is we are not going to… we do not have the mandate, as far as the investigation on those matters are concerned. So what we did with Ms Mogaladi, we discussed it with Mr Mataboge around it and interestingly, he didn't... he was agreeing, but later on... Then I was actually called into a meeting where the CEO, the Chief of Staff were to say that, no, this matter cannot be delegated to the NPA, because the NDPP will not actually deliver the results that 'I want this matter should be focusing on that'. Anyway, it's not our terrain to discuss this matter. So I said, no, when we discussed it, it wasn't a matter of preference, or whatever; but we were trying to discuss this matter to assist Ms Mogaladi. That was one aspect that happened. The second aspect that happened, I think it's on paragraph 59. When we discussed this matter, part of what we came across was there was information that was not actually included in that particular report. These matters are related to the investigation meeting that we had with Mr [Gavin] Watson, and Mr Watson, even in his words, verbatim, he said, even to to the PP, that 'I'm just a sandwich' that this matter is focusing on the CR 17. We indicated that when we looked into the first draft of that particular report at an early stage, after that meeting, the record of Watson was not there. We indicated that, also, that he has donated to many political parties, and even individuals, and he does not understand what this matter is all about. So at that stage, those are the issues that we raised. But then, later on, I, we learned that we are no longer supposed to be in that kind of report. And in my discussion was that when we look into the issues that we raised, there was a perception for instance, that we wanted or we have been coerced by certain individuals, and then we're removed from that particular investigation, which I find it even very difficult, because the issues that we raised were not personal, but were in the interest of finalising a report and looking into the risks, as far as what was to be contained in that report. This was based on the fact that it was still our responsibility to deal with those particular matters. So this is one of those issues that I know there was an unhappiness. The Chief of Staff even said to me, that this report, you will be dealt in this office, and the PP will emerge as a powerful woman in the country, after dealing with this particular matter. And I started to have doubts as to whether our removal from there were issues that were genuine or in the interest of the organisation. It was a very difficult you know, kind of a situation because this was very much unusual for me since I started working in that particular office.
Adv Mayosi: When you say you were removed from the investigation, who was removed and by who?
Ms Baloyi: You know, we were told, I was told by the CEO that myself and Pona need not be worried about the Bosasa matter. It was following at this time in my inquiry when we had a meeting that Mr Mataboge is not coming to present on his cases. And he [the CEO] said that he's not supposed to be there, because he's dealing with an important matter with the Public Protector, but I said that it's part of what 'you're supposed to do'. He said, 'no, you're no longer part of that particular investigation, and anyway, the executive manager can deal with this agenda item'.
Adv Mayosi: Right, one of the issues that you raise as being problematic to you in the Bosasa and rogue unit investigations, you say, in paragraph 63, that the PP prioritised both reports. Now, surely you cannot fault the PP for wanting to expedite the investigations and the report as soon as possible. Why did you find this problematic?
Ms Baloyi: Chairperson, finalising, I think that was good practice. You know, it was good for the Public Protector to finalise reports timeously, as required by legislation on this type of cases. But my challenge, or our challenge as a team, although in that affidavit I spoke for myself, was how the process that led to the finalisation of that particular report was completed so a report was on time. It's good because then the complainants get a relief, and it's also good practice. But for me, it was the manner in which some of the issues or some of the content that we have been raising what some of the advice that we even gave was not actually considered. So I think for me, the problem is not about finalising the process, but for me, it's finalising a report without considering certain information or without actually closing the gaps or weighing the risks, if I may call it that way, so that at the end of the day that report is finalised timeously.
Adv Mayosi: You're saying that because they were finalised so quickly, that had an impact on the quality produced?
Ms Baloyi: Correct.
Adv Mayosi: And then in paragraph 64 you set out a WhatsApp communication, which you say you received from the PP on 26 May. This is where she is making reference to the sabotage of the PG [Pravin Gordhan] camp, as she put it in the text. Was this in relation to the rogue unit investigation?
Ms Baloyi: Correct.
Adv Mayosi: What did you understand this WhatsApp communication to be saying to you? And why was it problematic?
Ms Baloyi: For me, it's also there was an email that first came out from the Chief of Staff that 'Minister Pravin was unruly', number one. And I was not even aware of the sabotage that was there and the challenge for me is why – because I was excluded in some of the processes – why actually do that? But what worried me the most, Chairperson, was that last statement of 'one has to play the chess'. My understanding and my belief was that whatever the outcome, an investigation should be based on facts, on the information that we have received. But I find that worrying because if you're really doing a proper investigation, why 'play the chess' and my interpretation was that it was a political game that is being played.
Adv Mayosi: And then in paragraph 66, you refer to another WhatsApp communication you received from her, relating to a meeting with Mr Ramaphosa on 30 May, where she was instructing you that you would form part of the team. She will give you a copy to read and to shred thereafter. What was this about? And why is this problematic for you?
Ms Baloyi: The first challenge that one had was the mere fact that with some investigations one was involved and at some stage, you're not involved. And now I need to go to my commander who delivered the Section 7(9) and I'm given a hardcopy, which is unusual, one should be given a soft copy. I can only assume that probably the soft copy is problematic in terms of probably how it had been structured, but to shred it was worse, because in that office, we never shredded. Most of the reports that we have, especially with the comments, I used to file them so that I can go back to my notes, and understand the rationale. So for it to be shred, it was an anomaly. But when you look into the other reports that we've dealt with involving cabinet members, whenever it's a draft report or whatever, there was never such an instruction to shred it. For me, it was a Section 7(9) and it never had even attachments or anything, I looked at it as normal kind of report and when I looked at this instruction, I was surprised. It was really unusual.
Adv Mayosi: You also then raise as one of the problematic investigations for you, the McBride investigation. Can you briefly highlight for the Committee what you thought disturbed you about either the PP or the CEO in that investigation?
Ms Baloyi: When we dealt with the McBride issue, the complaint was around an appointment of a [IPID] deputy director. When we received the draft report, with Executive Manager Thejane, firstly, it was the tone of that particular investigation, and we started discussing that with the provincial head, Ms Manyathela, that this report actually now has two complaints, can you give us the copy of the other complaint; who's the complainant? Because when we read the complaint, the complaint is not talking about procurement; it's only talking about the appointment of a deputy director. Instead of her answering that particular question, she went to the CEO, saying that Ms Thejane and myself are questioning her investigative skills. I said no, it's not about that, but I want understanding what this matter is all about. When we're dealing with this particular investigation, I said why would you focus on one of those. Then we are saying, no, the feeling in the PP’s office was that McBride was likely to be nominated as Deputy Public Protector and that “we need to eliminate him from the system”. Then I asked the question – we are talking about somebody at senior level, how would he have known about such procurement and such appointments – laying these at his door – without even considering that for procurement, the CFO could be involved, or the Manager: Supply Chain would have been involved. Same thing as the appointment, but I, we couldn't find anything specifically that linked him – but the investigation was talking to Mr McBride. The investigator himself later on, when we later raised issues, he sent the report directly to the Public Protector – which was another anomaly –without the executive manager and myself having looked at it. So that was another aspect. And for me, it's the fact that the explanation that we got from the officials is that 'we have worked with McBride, we know that kind of an environment'. I said that everybody else has issues, but let's focus on the issue at hand. For me and the executive manager, it was this thing is no longer about the investigation, but it was about something else. That was also problematic for us in the office.
Adv Mayosi: And finally, in your affidavit, you mentioned, the Prasa investigation as being another example of the CEO, where he improperly sought to interfere in the conduct of an investigation. Can you elaborate for the Committee how that was so in your view?
Ms Baloyi: Mr Mahlangu indicated that there is a supplier that is not being paid. That Prasa is taking its time to do that. Then he sent me a message to understand who was dealing with Prodigy, and he has been trying to get hold of Ms Thejane and could not get hold of her. Then I had to talk to Ms Thejane about it – that she must intervene with regards to the payment. And it was, I think, two weeks before that we had met with a board of Prasa and Ms Khanyisile [Kweyama], I've forgot her name now; I don't know why I forgot it. So we agreed in that meeting that whenever we are looking for information on the investigations, we must talk to the board and establish what is happening. So he was saying, no, we need to pay this complainant. When we asked, Ms Thejane was asking questions. And he says in that WhatsApp that 'I asked Neli [Ms Thejane] to intervene with regards to the payment. And now the complainant feels she's being investigated in terms of being assisted'. Then I went to him to say but we cannot ultimately deal with this request, because this office investigated that matter. We are the ones that came up with those recommendations that the appointment was irregular, and therefore the matter is before the court. Then he said to me, 'You don't know whom you're dealing with, you're dealing with powerful politicians here. You must resolve this matter as soon as possible'. I said we cannot do that because what do we say to Prasa, because the matter is before the court, and you could not do that. So it was one of those worrying factors that Mr Mahlangu could not understand where the case is. He would make instructions on matters that he did not even have a clue of what is happening. So those were some of the issues that actually troubled me, amongst others. I could go on and on and talk about other investigations.
Adv Mayosi: Thank you, Ms Baloyi. Can we go to the affidavit for the enquiry, Bundle D. In the affidavit that you've made for the Enquiry, you've obviously associated yourself with the affidavit you made in the High Court, which we've substantially gone through now. But you also in this affidavit elaborate on other aspects. One of which is this issue, which is the culture of fear at the PPSA. In paragraph eight of your affidavit, you then reiterate that when you were the COO, you were responsible for investigations, and you set out the reporting lines that you had four executive managers reporting to you. Then you report to the PP for investigations, to the CEO for administrative issues, and to the DPP, Adv Kevin Malunga, for cases older than two years. You've also alluded in your evidence already to what you say in paragraph nine, which is the backlog that you found and what you did to deal with it in the time that you were there. But in paragraph 10, you then say that the PP was obsessed with eradicating the backlog. Now, before we talk about this, I want to put this proposition to you. It would seem to me as an ordinary individual, in relation to the PPSA that it's quite laudable for the executive authority to want to eradicate a backlog, would you not agree?
Ms Baloyi: I agree, as I stated earlier.
Adv Mayosi: Yes. So what was problematic then about the PP wanting to get rid of this backlog? What was the problem in relation to this?
Ms Baloyi: The problem was what I said earlier, that when you look into this kind of a backlog, and you look into the amount of work that needed to go into those investigations, we were focused mainly on that, nothing else, but actually pushing the numbers at the expense of content.
Adv Mayosi: Okay, we'll get to that, because you deal with quality later on in your affidavit. But in this particular paragraph, you say that in monitoring the progress of the backlog, the PP imposed her own impossible and unreasonable short-term targets. Now, my question is, were the targets not set by the executive managers and the investigators?
Ms Baloyi: No, it's that I will receive an instruction as to which of these reports needs to be released by when, and then go back to the executive managers as to what needs to be released by the end of the month. For instance, I received an instruction on 26 March, that the FSB [Financial Services Board] report must be released by 28 March, that was two days. There was no way that that report could be finalised in those two days. For me, that was one kind of a challenge. Personally, as I stated earlier, it's actually good that we finalise the reports on time, eradicating the backlog, but when you look at the unreasonable and impossible short-term targets given to chief investigators and executive managers. For me, it was something that was worrisome at the end of the day.
Adv Mayosi: What made these targets unreasonable? Can you be a little bit specific? The targets that you say the PP required, what made them unreasonable?
Ms Baloyi: I've mentioned the amount of work that needed to go in vis-a-vis the dates that were given to finish them. I'll actually even give you a second example. There was a report that we were supposed to deal with the timing of municipality appointments. The period we have been given that we needed to finalise it quickly, was very much unreasonable. But what we did with that particular report, I had to put up a team that we had to deal with it within that particular period. But at the end of the day, what happened was everybody else had to leave. Doing and focusing on helping the chief investigator involved in that report so that it's completed on time, I felt that that is not the right way of working. But I know the environment allowed for people to agree to targets because whenever an instruction comes, it was very clear that if you don't get that done, then there's going to be punitive measures.
Adv Mayosi: Right. You say later in the same paragraph that during Dashboard meetings, people were forced to commit to targets which they knew were impossible to achieve. Now, my question is, surely executive managers could disagree with the PP?
Ms Baloyi: You mean on targets? There was no room for that.
Adv Mayosi: Can you elaborate?
Ms Baloyi: As I stated, people would have to commit to those particular targets, because they were scared because most of the time, as I said, instructions were accompanied by a statement of an audi, or a threat, if you are not going to deal with those particular matters. So that was not an easy kind of a meeting, and people had to commit to those kinds of targets that would go out. When you look at that amount of work that needed to be done, unfortunately, we had to live with that norm of an audi environment.
Adv Mayosi: Let me take you to paragraph 12 of your affidavit where you describe, in your view, the PP's leadership style. You say she was authoritarian, she must be bowed down to, quite literally, her style of leadership was characterised by inflexibility. Now, Ms Baloyi, is that not a bit of an exaggeration? Can you just elaborate on this authoritarian and bowing-down-to leadership style and how she must be addressed as Madam and all of that. Can you elaborate for the Committee, please?
Ms Baloyi: Yeah, that has been my experience having been in that particular office. For instance, I have worked with various MECs and ministers, but you know, when the Public Protector walks from your office to the boardroom, we had to rise. I find it an anomaly that it's not a person that walks in as an executive authority, which most of the minister, embassies and ministers that I've worked with, do not do that. I think I would, I just felt that, when you are at that particular level you need to deal with matters in a manner that you understand your team, you understand your environment. I'll cite an example.
Adv Mayosi: So I am sorry to disturb you, you said you had to rise. You mean if she walked into a room and you were already in the room, you had to rise, is that what you mean?
Ms Baloyi: Yes, we had to rise. We have to rise.
Adv Mayosi: And you interpreted this as what?
Ms Baloyi: I mean, for me, I interpreted it as a sign of power and leadership, that needed to be done. I mean, it's not somebody that is walking maybe some metres but it's just few steps, you just open a door and come into the boardroom. It's just a step, two or three steps, but we'll have to rise and I find it out of the ordinary. When I asked colleagues why are we doing that, they said that this is how it needs to be done.
Adv Mayosi: You say then she fostered, we're still on paragraph 12, she fostered a culture of mistrust and insecurity in the organisation. And you make reference to a WhatsApp text that you say she sent you, warning you not to trust Ms Mogaladi? Is this the text you're talking about? [referring to screenshot being shared: “Coo, careful of Pona and Tebele but you are an adult be wise PP”]
Ms Baloyi: Yes, that is the text that I spoke about.
Adv Mayosi: Are you able to recall what circumstances led to this WhatsApp text message?
Ms Baloyi: If you look at the date it was when I've just started in that office and it was a day after Mr [Futana] Tebele and Ms Mogaladi were in my office for a long time dealing with this particular period, that they've been in a meeting and apprising me on certain matters. I was surprised that she could send me that message. But my assumption was it was because I've just started and I didn't know the individuals personally.
Adv Mayosi: Can you also elaborate for the Committee what you mean in paragraph 13, where you say, "The PP would not or couldn't allow professionals to be employed in the PPSA the spacethat they required to do the jobs, that is, to conduct impartial investigations" These are quite serious claims to make, but of course, you were the COO, and you were there. What do you mean by this?
Chairperson: I've noticed your hand, Adv Mpofu.
Adv Mpofu: Oh, I'm sorry, Chair, I thought I was muted.
Chairperson: Thank you. Please respond, Ms Baloyi.
Ms Baloyi: You know, at that time, when we're dealing with this backlog and other cases, then there was a proposal that people should be moved around. Other people would not be dealing with these kind of investigations, now, they have to go to new areas. On the other hand, we will also focusing on a new organisational structure that was supposed to be fit for purpose. So I found it very difficult what it is that needed to be done. One example, one senior investigator was in a state crying in the corridors because now she was being moved to another area. The other reason when we engaged with Mr Mahlangu, was it was about gossip that ultimately led to making decisions that were not in the interest of the work we were doing. At the end of the day, you will find that there were levels of mistrust amongst colleagues, because somebody else now had to deal with a matter that somebody else has not done. When these decisions were taken, we were excluded from the process. With all executive managers, we had to meet with Mr Mahlangu, to say that in the middle of these investigations you still expect us to perform; however you want us to move people around – we are also supposed to deal with structural matters? You are creating a problem for all of us because then we are sitting with employees that are not happy; there's tension in the office as to what informs those kinds of outcomes. In most instances, what we'll get from him was, 'No, we have just observed so-and-so is not going to do this report well' or 'so-and-so cannot be trusted'. But I said, this is a professional environment, as a COO or as a programme manager, when you move someone and they were doing their work the we need to explain this. I remember that there was a lady that even went to the Public Protector's office, Princess, and she came out in a state, because she was one of those that were supposed to be moved. She was crying in the corridors hysterical. And Mr Mahlangu wrote to the executive, the chief investigator in that unit, to say that she must tell Princess to behave instead of causing drama. And I said this was not about drama. This is about work. At some stage what I'm saying is that when somebody comes to your office and cries to say 'I've never done this work before, and I cannot be moved', and 'I need to be assisted in how I go about this work, I require training', yet on the other hand, this way of dealing with these cases it is massive and there are tight deadlines, and when you ask me to go and start something new, I will fail. This was the kind of environment that decisions were taken in a manner that I believed was not in the interest of the organisation. You can't give somebody who is not fit to actually execute certain responsibilities to start with a case that has got clear deadlines. For me, it was the lack of appreciation of professionalism and looking into what are the strengths and weaknesses of this team. What and how we can help them. If we do that, what are the risks? So for me, it was about moving people and we don't care they're going to start to do that work. I felt that that environment was not right in terms of taking decisions that affect people, because these are the people that are the engine of the core mandate of that Office.
Chairperson: Okay, Adv Mpofu?
Adv Mpofu: An old hand, Chairperson.
Chairperson: Okay. Thank you. Proceed, Adv Mayosi.
Adv Mayosi: Thank you, Chair. Staying with paragraph 30, at the end, in the last sentence, you say that the PP involved herself in operational matters of the office, to the detriment of reporting structures and management relationships, and this created immense confusion and tension. Can you elaborate on that please and be more specific?
Ms Baloyi: When I look at what I wrote in that paragraph, there are certain matters that I am of the view that if we are talking about a Public Protector that is operating at executive authority level – she would be involved in reports when they are concluded. It's actually work that has been sanctioned by those that have a responsibility to do so. But in some instances, we'll be busy with reports, and then she'll be giving instructions to the senior investigators on what they need to do. You would have seen a report before and when you asked the senior investigator, they'll say, 'No the PP wants it in this particular manner'. At times, you wouldn't know what is it that we need to do when you don't agree. I felt that it was an executive authority that was operating at a very low level, which was detrimental to the reporting structures. For instance, when there are matters related to legal services, I'll give you a classic example. It's about a report that is actually in my area, which is Investigation. Legal Services is with Corporate Services in terms of governance. You wouldn't even know where you feature because certain decisions have been taken that affect even your budget. So it was a very difficult kind of an environment to operate in because at times you wouldn't even know how to deal with a matter that you have allocated to an investigator. Later on, we are told, 'No, take it away from that investigator and give it to somebody else'. The question that comes naturally to someone is what is wrong in me handling this particular environment. And most of the time, the reasons provided were not actually related to competencies, but related to something which you wouldn't even communicate to the individuals concerned and still feel like you are providing leadership. Ultimately, you would even be a clown yourself by telling somebody that somebody 'who does not even work with you, does not trust you'. So it was that kind of an environment that in some instances, or in most instances, created tension amongst team members.
Adv Mayosi: In paragraph 14, you talk about the pressure on you and other executives to take disciplinary measures against staff. That on many occasions you would refuse to take those steps against staff members who report to you. Can you explain and elaborate for the Committee why it is that you wouldn't take that approach, when instructed to take such steps against people who reported to you?
Ms Baloyi: In terms of any manager, when you give somebody the instruction, you must know that it's a reasonable instruction, or it's something that is within the law. You also need to explain yourself, why you give that instruction, what the expected outputs are, and also engage with them to find out what kind of support they need. When they've got challenges after that particular process, you intervene and establish the causes of delays in performance. You do not actually give an instruction and a timeline with threats that, for instance, 'you are going to be managed'. I'll give you an example. We had an investigator that was promoted by the name of Funzo. She was just admitted as an advocate and given more responsibilities. She could not cope but all the time we're dealing with cases managed by Funzo, it was 'why is Funzo not actually dealt with, punished, or 'why she's not disciplined, she's not performing'. But it's somebody that you have recently promoted. As an employer, I felt that you've got a responsibility to nurture that talent, to guide and develop. You cannot just promote someone and later want to discipline them. That is very much unfair and in my view, you cannot manage something that you do not even give an opportunity to understand its context. It was my view that I need to listen to my colleagues, understand their challenges. The environment in which you are working, much as I appreciate that we needed to meet our targets, as a manager you cannot ignore some of the challenges they face, and not try to resolve them or help them throughout the particular process. For me, it was an environment that you do it on this day; if not, actually you're going to get an audi or you have to be disciplined.
Adv Mayosi: Thank you. Can I deal with one last issue before we break for lunch, and then after lunch, I won't be long. I think I'll be about 20 minutes or so. Thank you. Let's go to paragraph 15. You talk about a meeting, as the PP called you in with Mr Mahlangu and the late Mr [Sibusiso] Nyembe, who was the Chief of Staff. Do you see that?
Ms Baloyi: Yes.
Adv Mayosi: Can you recall when that meeting was? What had happened there? What had caused that meeting to be called?
Ms Baloyi: I can't recall but it was I received a call from Mr Mahlangu that I need to come to the PP's boardroom. I went to that particular boardroom and when I go in Mr Mahlangu said to me, he used the phrase 'If you can't feed your stomach, we'll feed it and if we feed it for you, then it means that we don't need you'. I said what does that mean, then they were saying to me that I'm not actually performing and that you have been given an instruction long time ago to deal with the non-performance issues around Ms Mogaladi. And because it's something they are worried about that now I've befriended all the executive managers, that's why they are not actually performing. When they mentioned that, honestly, I recalled that it looks like there is something wrong with Ms Mogaladi that I do not know about in terms of that particular issue – because the performance was across the organisation but the name that was mentioned in particular was that of Ms Mogaladi, although the performance on the cases older than two years were transversal within the organisation.
Adv Mayosi: And what was your response to that?
Ms Baloyi: I responded that I need to note what they've said, but again I believe there are reasons that have been provided to me in most of the issues related to not meeting those deadlines. But I committed that I'll take corrective action. I found that meeting awkward because immediately after they said that, they said now the meeting is adjourned. It didn't even last five minutes.
Adv Mayosi: All right. Then in paragraph 16, you say you met with executives to establish their challenges, and they explained a number of issues to you, including the targets, the decision making, the interference in operational matters. Did you communicate with the PP regarding these constraints and these challenges expressed to you by the executive managers?
Ms Baloyi: Yes, if even when you look into those minutes of July 31st, some of these issues might not have been said or expressed in the same manner in my affidavit. But the challenges that they had were around those particular issues. For instance, when we looked into operational matters, I remember that's what ultimately led to the issues around the Gauteng office that there was a disagreement between Ms Manyathela the PR [Provincial Representative] manager, and an admin officer in that office. This admin officer who has lost her brother-in-law in Polokwane, and requested to travel before Friday, if I recall probably it could have been the weekend of the 15th or 31st. Ms Thejane came to me saying that there's this issue at hand that Ms Manyathela is refusing to give this admin officer leave. I asked as to what this person is doing, is it in an investigation, does she have timelines, and whatever. Surprisingly, before we dealt with that issue, Mr Mahlangu confronted me that this is a problematic employee; she does not respect Ms Manyathela, and she's not deserving leave, she can leave on Friday. I said to them, you keep an admin officer in the office because she's got a challenge with a provincial manager, and you expect this person to be fully functional when she's got bereavement? Really, just leave this person to go. And to my surprise because this particular issue created challenges in that particular office, I was excluded from a meeting that was supposed to go there and address those issues. I instructed Ms Thejane that what we are turning this institution into is a mental health institution; that person won't be productive. What they need to do is to ask her what is required of her before she leaves, and then she can leave. Whether there are other issues that involved her it doesn't actually matter, but she must complete what she's supposed to do. She can be granted leave and go and bury her loved one, and then we're going to deal with those issues. I felt that was very much unreasonable and unfair, because I told them, you will keep her here but she won't be functional. The other aspect I used to find very difficult was that Gauteng out of all the provinces that Ms Thejane had to go to the CEO, in most instances, you wouldn't even get both sides of the story but side with Ms Manyathela on the matter.
Adv Mayosi: Chair, this may be a convenient time.
Chairperson: No, I'll give you that extra 15 minutes to conclude.
Adv Mayosi: Thank you. So, moving on. In your affidavit, you talk about your own particular incident where your daughter was ill. You needed to take leave to attend to her. You say in paragraph 17 that the CEO refused to allow you to take leave. Is that right?
Ms Baloyi: Correct.
Adv Mayosi: Can you explain to the Committee what the context of that communication was?
Ms Baloyi: On 2 September, there were reports that were supposed to be submitted to the Public Protector and the night before, my daughter, who was 8 years then, was very sick. I informed the PP's office and the CEO that I would not be able to come to work because I need to take my daughter to the paed[iatrician]. I had reports that I worked on at home. So I started in the office, and I dropped those reports very early in the morning. I think around quarter to eight I was in the office, then I left before 10. Then I got a message from the PP asking me where are those reports. That's when I responded to say that I have some of the reports I had to leave the office and I have to review them and stating that my daughter, I've taken her to a paed and she's diagnosed with broncho-pneumonia and I'm finalising logistics. Then she said, all the best hope she's healed. I said thanks, PP. Then two minutes later, I get a message that says, 'I'll be taking action against the ceo for your failure to meet deadline. We need to lead by example and be accountable. If you submitted all these on time, such emergency would not portray one as insensitive". I just said to myself, really? You know, now obviously I've got competing challenges with me being a mother to an eight-year-old who's struggling to breathe, and she had to be admitted. And now I need to manage the report and I need to have the right frame of mind. Then I have to give – I think when you look at the following picture – I had to send proof that my daughter's actually admitted in hospital. It's true. I had to send photos. I just said to myself I have to live with it; it was not happening to me. I remember when I was there, Ms Mogaladi also had tight deadlines; her niece was sick. The doctors informed them that, you know, she was in the last days of her life. Ms Mogaladi drove to Polokwane – she wanted to brief me, I said, no communicate directly with the PP so that she understands what you are actually dealing with. The very same message was like showing some form of empathy. She some showed some empathy and told Ms Mogaladi that she needed those reports by 16h00 on the same day. I said to myself, really? Much as you understand there's work that needs to be done, for me, it was such an environment where you don't know whether that empathy is genuine, which is normally accompanied by a statement of a punitive measure. It is one thing I mean, for me, Chairperson, a mother in our culture, if they say that somebody is in hospital, very sick or somebody's got bereavement, you, even as a mother, you put yourself in that position of leadership to say I have to communicate whatever I need from that particular person in a sensitive manner. Also, the timing is very much important, but this is not what we faced, but we soldiered on. And this is an indication, I'm talking about a culture that was…
Chairperson: Thank you, Ms Baloyi. We got that. Adv Mayosi.
Adv Mayosi: Ms Baloyi, charge 4, as you know, of the motion, it talks about harassment, victimisation, intimidation by either the Public Protector or the former CEO. Well, the question I have for you is where is the harassment, victimisation, and intimidation in the story that you've come to tell this inquiry?
Ms Baloyi: The number of audis that I have received, the number of unfounded allegations that have been made against me, really for me that was victimisation and intimidation. I mean, you work; you are promised that regardless of the circumstances you're going to get an audi, for me that is victimisation.
Adv Mayosi: And finally, nothing is all bad. Can you point to any positive aspects of your experience in working at the PPSA for the eight to nine months that you did?
Ms Baloyi: Yes, Chairperson, it's not all bad. I think it was a very good environment people were passionate about their jobs, professionals, I had good relationships with colleagues. They are the best of people that, if given an opportunity one day, God permitting, maybe I can go and work with them. I worked with a good team. I went into that environment, they inducted me, they supported me, we engaged very well. Whenever that we had differences we would iron them out, and be able to do things in the interest of the organisation. I think this is a team that under those circumstances, as I alluded to earlier manage the backlog it received so, I've learned a lot from that particular team that is the, but unfortunately we, we, we find ourselves with that kind of leadership, but really I admire the team and I'll continue to admire them they are they love their work and I think that's it I would I wouldn't. It was not all bad. You know, there are things that are good about that environment. I should be honest about it.
Adv Mayosi: Chair, I have no other questions for this witness.
Chairperson: I've given you 15 more minutes. Are you done?
Adv Mayosi: I wouldn't mind... I went through the last bit in a bit of a rush.
Chairperson: Just finish, it's fine.
Adv Mayosi: Before the lunch break?
Chairperson: Yes. How much more time do you need? How much more time do you need?
Adv Mayosi: No Chair. I have no questions for the witness. I'll deal with them differently if they come up.
Chairperson: Thank you. We'll take a lunch break and be back at two, thank you.
Chairperson: Thank you very much. Welcome back. Ms Baloyi, are you there? Ms Baloyi?
Ms Baloyi: Good afternoon, Chair. I'm here.
Chairperson: Thank you. Welcome back. Before I proceed to the cross examination, I'm just going to give the last five minutes to Adv Mayosi.
Adv Mayosi: Thank you, Chair. Thank you for the indulgence, I'm going to be about 10 minutes. I missed covering this issue with the witness. We furnished you with some emails yesterday that we obtained from the PPSA. Correct?
Ms Baloyi: Correct.
Adv Mayosi: I just want to touch on some few aspects of the emails, we won't go into this deep. Your evidence was that some of the investigations I think, in particular, you spoke about the rogue unit investigation. Some of these matters you would be involved in, some of the communications went directly between the investigator and the PP. Correct?
Ms Baloyi: Correct.
Adv Mayosi: If you can go to those emails, Bundle F, item 107, page 2164. You are not involved in all of them, I'm just going to take you to some of them that you are involved in or are copied on some of the matters that your affidavit mentions, and ask you to confirm whether you're aware of that email and what your involvement in that matter was. 2164, as you can see, it's an email from the PP to yourself. The subject line says: Final version of the Gugile Nkwinti Section 7(9) notice, do you see that?
Ms Baloyi: Yes.
Adv Mayosi: So you were involved at this stage of this investigation? Right up to the Section 7(9)?
Ms Baloyi: Yes.
Adv Mayosi: Were you involved in the report at all, thereafter? The final report?
Ms Baloyi: Yes, I was involved in the final report.
Adv Mayosi: Okay. Can we go to 2171? This is another one where you are copied in. It's an email from Mr Muntu Sithole to, amongst others, actually to the PP, amongst others, and you were copied in as well. Do you recall what it says in the subject line, it's the second subpoena to Hon Minister Pravin Gordhan. Do you recall this email at all? Can you shed any light on your involvement in this particular matter?
Ms Baloyi: Yes, I was involved, I know about it. It was after Minister Gordhan failed to appear and then there was a subpoena that was secured for that.
Adv Mayosi: Yes, you said. Down below the email from the PP, in which you are also copied. Can you recall... it's still about the same issue which is the second subpoena to the Hon Minister Pravin Gordhan. Are you able to shed any light on…
Ms Baloyi: Yes, I remember this is the matter that, when we requested documents from SARS, the former Acting Commissioner provided information and a legal opinion on individual tax information.
Adv Mayosi: Right.
Ms Baloyi: And, yes, the PP was not happy about that. Then Legal Services was instructed to move for a second opinion.
Adv Mayosi: All right, is that what is meant by her line that Legal urgently get an opinion from Sikhakhane SC, which will contradict Maenetje's opinion on availing an individual's tax information?
Ms Baloyi: Correct.
Adv Mayosi: Okay. Can we go to 2188. Just put the whole email up. This is another email in which you are copied, Ms Baloyi, from Mr Sibusiso Nyembe, whom I understand was the chief of staff or political adviser, at the time, who has since passed on we are told. What do you recall about this particular image?
Ms Baloyi: It was around issues of funding, if I remember quite well, it was around the fact that we do not have money to fund certain obligations. That we should be looking for funding around those matters. So I think the other issue for me, it was talking about the implications of not receiving adequate funding. Then, on the last paragraph, I have never met Adv Mkhwebene and I'm not sure as to what that was all about.
Adv Mayosi: But according to Mr Nyembe, the idea that he's mooting in this email about instituting proceedings, appears or he suggests that it was first mooted by Adv Mkhwebene to him.
Ms Baloyi: Yes.
Adv Mayosi: All right. Go to 2190. This is another one where you were copied on. Ms Baloyi, do you recall this communication?
Ms Baloyi: I can't recall this one, but I have been copied on it. I can't recall what it was all about.
Adv Mayosi: In the subject line, it's the investigation into allegations of... it suggests that it is, what you refer to in your affidavit, the so-called rogue unit investigation, correct?
Ms Baloyi: Yes.
Adv Mayosi: But you can't shed any more light for the Committee as to why you would have been copied here?
Ms Baloyi: No, I can't recall why I was copied on that email.
Adv Mayosi: I have no further questions, Chair, for this witness. Thanks.
Cross-examination by Adv Mpofu
Chairperson: Okay, exactly seven minutes. Thank you, Adv Mayosi. Thank you. With that I'm now going to recognise and invite Adv Dali Mpofu to start the cross-examination. We'll do that from now, until five. We'll to review at that point. Thank you.
Adv Mpofu: Thank you, Chairperson Good afternoon, Ms Baloyi.
Ms Baloyi: Good afternoon, Adv Mpofu.
Adv Mpofu: Okay. Deputy General? Deputy…
Chairperson: We're not going to go there.
Adv Mpofu: Yes. Ma'am, you heard the exchange that…
Chairperson: Reposition yourself, we're not hearing you properly.
Adv Mpofu: Okay, let me just press the magic button. How is that Chair?
Chairperson: That's much better. Thank you.
Adv Mpofu: Ma'am, on a more serious note, you heard the exchange I had with the Chairperson this morning about the relevance of your evidence, correct?
Ms Baloyi: Correct.
Adv Mpofu: And you are not... Are you surprised that the Independent Panel found that your evidence is not relevant to the work of this Committee?
Ms Baloyi: Adv Mpofu, I'm appearing before the Committee to assist it to do its work, but this is not my case. So about the relevance or not, that is not my call.
Adv Mpofu: Yes, no, I know, it's not your call. But do you know what relevance means?
Ms Baloyi: Certainly.
Adv Mpofu: Yes, I'm saying, I'm simply saying, are you... Firstly, are you aware that the Independent Panel found that your evidence is irrelevant? And if so, are you surprised?
Ms Baloyi: I'm not going to respond to that question. Because I didn't impose myself on this Committee. They invited me and I'm not even sure whether you know that invitation was based on the work of that Independent Panel.
Adv Mpofu: Okay, well, it should be. All right. Maybe let me put it this way, do you think that any of your evidence is relevant to the work of this Committee?
Ms Baloyi: Yes.
Adv Mpofu: All right. You. You have explained the reasons for your disgruntlement with the Office of the Public Protector. Correct?
Ms Baloyi: Then disgruntlement.
Adv Mpofu: Pardon?
Ms Baloyi: Then disgruntlement.
Adv Mpofu: Your previous disgruntlement. Are you no longer disgruntled?
Ms Baloyi: No, not at all.
Adv Mpofu: Okay. When did you stop being disgruntled?
Ms Baloyi: I was disgruntled probably for the first two days after I was dismissed. Then later on I was no longer disgruntled.
Adv Mpofu: I see. So you basically only became disgruntled after your so-called dismissal, not before?
Ms Baloyi: When we talk about disgruntled, actually, I was concerned when I was there about what was happening in the institution. Obviously, I was aggrieved when my employment was terminated in that manner. And after then, I was not, I was no longer aggrieved, because I took a decision on how to challenge that.
Adv Mpofu: Yes, no. No, I know that. I'm simply saying your disgruntlement or being aggrieved happened after the what you call a dismissal, not before.
Ms Baloyi: Correct. There's a difference between being disgruntled and having concerns and grievances that I could have raised there. So I think, for me, I rather use the word I had concerns around other matters which I have raised with the office.
Adv Mpofu: Yes, no, I think we're on the same side. Because your evidence is that you had concerns while you were there. But you were only disgruntled after your dismissal or aggrieved after your dismissal. Correct?
Ms Baloyi: What I'm trying to say to you, Adv Mpofu, is when you use the word disgruntled, I'm saying that when I was there, I was not disgruntled as such. I was just concerned. The only time when I was disgruntled was the first two days after my termination, which later on, as I said, I was no longer worried because I challenged that decision.
Adv Mpofu: Yes. No, then that's clear. No, that's what I was ascertaining. The only time you became disgruntled was after your dismissal. And I think you've answered my question. Thank you. All right. Now, you're, you are aware that this is the impeachment proceedings for the Public Protector? Correct?
Ms Baloyi: Correct.
Adv Mpofu: It's not for Mr Mahlangu. Correct?
Ms Baloyi: Correct.
Adv Mpofu: Yes. And your major disgruntlements are with Mr Mahlangu, correct?
Ms Baloyi: No.
Adv Mpofu: You have no disgruntlement with Mr Mahlangu?
Ms Baloyi: I do have, but I know Mr Mahlangu was acting upon the instruction of the Public Protector
Adv Mpofu: Uh huh. So, okay, so all these things that you've said about Mr Mahlangu, you are saying they were upon the instructions of the Public Protector?
Ms Baloyi: I'm not saying per se all of them. But I know for a fact that some of the actions that he has taken, were based on the instruction of the Public Protector.
Adv Mpofu: Did you witness those instructions? Or are you just guessing?
Ms Baloyi: I'm not guessing Adv Mpofu. In one of, as I said in my initial testimony, that even when Mr Mahlangu gave me the letter, he said to me, that he's also on his way out because he knows that the Public Protector is going to fire him. Also, the second incident was when we're in the Eastern Cape discussing the Bosasa issue in the presence of Ms Motsitsi. He actually stated that he is unhappy about some of the instructions that he's been given, because he's at loggerheads with us. So I'm not guessing. It's matters that Mr Mahlangu told me in the presence of other colleagues.
Adv Mpofu: He told you... sorry, I don't understand that. The fact that he was going to be fired, what does that got to do with what we're discussing now?
Ms Baloyi: When he gave me the letter of termination, when I asked him why do you actually give me a letter that contains information that does not reflect the true reflection of my performance and the issues at hand. In the presence of Mr Gumbi, he said that, 'I have to do this, it's not like I enjoy doing it, but I'm acting under instruction'.
Adv Mpofu: I see. So basically then what you're saying is that Mr Mahlangu was not to blame, he was just acting under instruction.
Ms Baloyi: Depending on the circumstances. I mean, he was the accounting officer, she was an executive authority. That combination actually tells you where the power resides in an institution.
Adv Mpofu: But you yourself never witnessed those instructions being given.
Ms Baloyi: I witnessed them several times in our Dashboard meetings.
Adv Mpofu: Where the Public Protector said Mr Mahlangu must do something to you?
Ms Baloyi: Yes.
Adv Mpofu: All right. What he... did she say that he must give you the letter of termination.
Ms Baloyi: Not the letter of termination, the audi letters. That would be said in the presence of other colleagues who are reporting to me, in the presence of the Deputy Public Protector when he attends those meetings, that I must get those audis. You can if we look at those minutes and recordings, you will you'll find those decisions and those instructions.
Adv Mpofu: Yes. No, I have no problem with audi letters. Actually, as I've said before, I don't understand why / how the letters were weaponised as something negative. You know, audi means the right to be heard, correct?
Ms Baloyi: I think you would have heard me, what, what I said about them earlier.
Adv Mpofu: No, I'm asking you... please answer my question, Ms Baloyi, we don't have a lot of time. Do you know that audi means the right to be heard?
Ms Baloyi: True.
Adv Mpofu: And do you know that the audi alteram partem rule, which is the full term, is one of the rules of natural justice?
Ms Baloyi: Yes.
Adv Mpofu: And you're... so you're saying there was an 'audi environment', for example, you said that. In other words, there was an environment of obeying the rules of natural justice, correct?
Ms Baloyi: It was not that. It was a tool that was used as a threat to me. I mean, having worked in many institutions with several people, I've never seen that. It was the first time that I saw such an environment where you could even have a file of audi letters.
Adv Mpofu: Yes. Okay, it's going to assist if you just answer my questions, but I'll try. Sorry, if you want to explain after answering, you're free to do so. But first, start by answering the question. The audi letters were meant to give people an opportunity to explain why they had failed to do something, correct?
Ms Baloyi: Not in this instance.
Adv Mpofu: Oh, so the audi letters were not audi letters. They were not a right to explain why you failed to do X or Y.
Ms Baloyi: I think if we look at my last letter that I received from Mr Mahlangu, for me, the way / manner in which it was used; I'm not talking about the purpose of an audi. But in this instance, they were used to build cases against certain people.
Adv Mpofu: Right, okay. The evidence before you from several employees, even those critical of the Public Protector, was that these letters were used as a means to give people a hearing. If they gave sufficient explanations, then nothing would happen. I think Adv [Nditsheni] Raedani, and all sorts of people like that have confirmed that. So you're saying that they were not telling the truth?
Ms Baloyi: I didn't say they didn't tell the truth. But for me in a work environment, with the kind of issues that we were seized with, the question that I had is why are constructive engagements not permitted. But rather an audi is a norm to grant people without even hearing them out. There's no room for that. It was a matter... for me, that's what I'm saying in the papers I've done, disputed the manner in which they happened, and they were given. That's where the challenge was.
Adv Mpofu: Yeah, but okay. I don't want to spend too much time on this, but I'm just at sea on what you mean now. What do you mean been given an audi without being heard? I thought audi was the opportunity to be heard.
Ms Baloyi: I was given an audi for requesting Ms Mosana to withdraw her resignation, a matter that even today was never discussed with me. Instead, it contains wrong information. I'm talking about such things.
Adv Mpofu: Yes, ma'am. But that's exactly what audi is like. If I say to you, Ms Baloyi, why did you come late to this hearing today? And I give you an opportunity. Then you can say, no, I didn't come late, I was actually here on time, or I had load-shedding or whatever. That's what audi means. It means an opportunity for you to explain something. If you explain it adequately, then we move on to the next thing, isn't it?
Ms Baloyi: I think let's agree that it depends on the leadership style with that audi, and we can move forward, Adv Mpofu.
Adv Mpofu: No, no, no, we'll move forward when I say so. So I'm saying that you accept that the audi letter is a positive thing, which is meant to give the recipient an opportunity to explain what at face value might seem like a transgression, and it might turn out that there's nothing to it and then we'll move on. You yourself received audi letters, correct?
Ms Baloyi: Yes, I received it. But I wanted to you about the Mosana matter. The Mosana matter happened when the CEO and the PP were out of the country. Isn't it unusual that somebody that has been out of the country gives you an audi, without even understanding all the circumstances?
Adv Mpofu: No, but the audi is meant for that person to understand the circumstances. That's what I'm trying to get into. That's the whole point of an audi. So if you come back from overseas or from Mars, and someone says, Ms Baloyi, while you were away in Mars, was beating up all the employees. Then I give you an audi letter and you say, no, it's not true. That's it, then we'll move on. That's the point of audi, isn't it? To give you an opportunity to explain the allegation? And if the explanation is adequate, then that's the end of it.
Ms Baloyi: You can, we can deliberate on it or argue, but for me, my observation has been that it was just a tool that was used to instill fear that people will say that I've got an audi after an audi.
Adv Mpofu: Okay, in other words, all the people who are saying that this was an opportunity, which was given to them, including Mr Tebele, Adv Raedani and anyone else who received audi letters, they were wrong?
Ms Baloyi: I don't know. I can't comment on that because I don't even know Mr Raedani, and I've never worked with him. I am not aware of Mr Tebele's audis because he was not reporting to me, so I won't be able to comment on that.
Adv Mpofu: No. Okay. The product, we'll come back to that. I need to, I'm not talking about the content of their audis, I'm talking about the concept of giving somebody a right to be heard. But that's fine. In your case, none of the audis ever translated into disciplinary action, correct?
Ms Baloyi: Correct.
Adv Mpofu: That must be because you gave adequate explanations for whatever was suspected to have gone wrong, correct?
Ms Baloyi: No.
Adv Mpofu: Then why were you not subjected to disciplinary action, do you think?
Ms Baloyi: So I never went through a disciplinary action, but those letters were ultimately used for my final dismissal action. Because if you look into my final letter, you will realise that it quotes all those audi letters. So it was used as fire to finally get rid of me from the institution.
Adv Mpofu: Did you deliver on the issues that were raised in the audi letters? Ultimately?
Ms Baloyi: Personally, I believe that I've delivered,
Adv Mpofu: Yes, but the employer did not believe that you did, correct?
Ms Baloyi: Yeah, the employer, that's their own opinion. But from my side is, I view the letter differently.
Adv Mpofu: Yes, no, that's fine. In those situations, if the employer views the method differently, and you see it differently, which view should prevail, your subjective view or that of the employer?
Ms Baloyi: You must remember that in terms of any other environment, an employer can never be aggrieved; can never launch a grievance. The employer has got more resources; an upper hand over the employee. Regardless of what you can do in this instance, the question of what the employer has in terms of resources and authority. Even now that the issues have been put forward, but it depends on who actually is telling the truth. So I wouldn't stop them from doing any other thing. They had all the resources, they had all the powers, they had all the authority to do whatever that they wanted.
Adv Mpofu: Okay, so I also don't understand that. What do you mean, an employer can never be aggrieved? What happens if the employer is not satisfied with your performance or your conduct, don't they, when they are aggrieved, institute disciplinary steps?
Ms Baloyi: Which employer are we referring to?
Adv Mpofu: Any employer in South Africa every day, when they are not happy about something, they institute disciplinary proceedings, don't they?
Ms Baloyi: Depending on the circumstances, you can do whatever you want. But it depends on what is the policy of an organisation, what your values are, what your leadership is, and what you actually want to achieve at the end of the day. And also if you allow room for development, and probably allow room for an organisation to learn – what is a learning organisation – that mistakes are allowed and whatever. Depending if you want a perfect organisation that you build a bridge, it must comply with all regulations, depending, regardless of whether you just completed your degree, it depends on how you apply those kind of punitive measures – the circumstances obviously.
Adv Mpofu: Do you know if an employer in South Africa who doesn't take disciplinary measures?
Ms Baloyi: You know, for a fact, Adv Mpofu, due to my level and experience, there would not be any other employer to take this disciplinary action.
Adv Mpofu: Exactly. So the answer is yes. Don't give us that long story. I was just saying, employers when they are not happy, they institute disciplinary action. Yes, that's it. We agree.
Ms Baloyi: I can't say yes. I can't say yes. If an employer is not happy, it's not always the case that you implement a disciplinary matter. Because you're talking about happy. You're talking about happy it's not always the case that when there's an issue, you automatically take action. But you could be having various corrective measures that you can embark upon.
Adv Mpofu: Yes. You also know that the way to get performance out of employees in basic management is the so-called carrot and the stick, correct?
Ms Baloyi: No.
Adv Mpofu: No, no. Okay. Well, the only way to make get people to perform – you can't put a gun on their head – is either to use disciplinary measures or in the private sector mostly also to use incentives. Correct?
Ms Baloyi: You missed one in the middle.
Adv Mpofu: Yeah, let's just deal with the two that I've spoken about, then you can come with your third one. Are those two used? Generally?
Ms Baloyi: No.
Adv Mpofu: [shouting] No?
Ms Baloyi: No, not on performance. No.
Adv Mpofu: Okay. Okay. So you've never heard of performance incentives or performance disincentives in HR theory?
Ms Baloyi: I'm saying that it's not a normal practice that an employer will implement those when you look into the fact that performance in the public service, especially in the public service, it's highly regulated on what you need to do.
Adv Mpofu: Yes, but they even in the public, whatever, public or private service, the tool to get people to work is to put targets and then force those targets, that you can't beat them up. The days of slavery are gone. Would you agree?
Ms Baloyi: Yeah, if they're achievable, they are realistic, and all the resources are there and everybody else understands that it's possible to do them? Of course, yes.
Adv Mpofu: And again, the evidence of previous witnesses called by the evidence leaders have been that the targets were intended to improve service delivery. That was a good thing, wasn't it?
Ms Baloyi: Not true.
Adv Mpofu: All right. Now, also the evidence of previous witnesses was that – and you may not have experienced this because you were only there for a short time – was that at a certain stage, the Public Protector, basically because people are not meeting the targets, even asked them to set their own targets. Did that happen while you were there? Or maybe before or after?
Ms Baloyi: I'm not aware when you say that they set their own targets, because we are talking about people that would have had performance agreements.
Adv Mpofu: Yeah, that's what an agreement is, ma'am. It's any one of the two parties to the agreement can make the suggestion. So it could be this side or that side? I'm saying that you're aware of the evidence that was given here, that in certain instances, the Public Protector asked the employees to set their own targets?
Ms Baloyi: I'm not aware of those kind of concessions.
Adv Mpofu: Yes. And you'd agree that, that if that was the case, then that must have been an effort to make the targets reasonable? In other words, if you set your own target, you can't then turn around and say it's unreasonable when you didn't meet it. As a matter of logic, you agree?
Ms Baloyi: I don't agree. I don't know the circumstances. So I'm not going to comment on those.
Adv Mpofu: No, I'm not talking about circumstances. Ms Baloyi, please answer the question.
Ms Baloyi: I'm answering the question, I'm answering to the question. We are talking about the evidence of other people that I have never worked with, and I've never heard about their issues. So I'm not going to agree to that. Because of the different leadership styles and approaches we apply to different people, so I'm not going to agree to that. Yeah, I don't know.
Adv Mpofu: Please listen, do you mind? If you listen to the question, it's going to help you. Relax, have a glass of water, if you have water, and just listen to the question. I'm saying, if someone, if you and I, if you are my boss, and you set a target for me, you say Adv Mpofu, I want this next week, and then I don't deliver, then you say I want it a week later, then I don't deliver, then you say I want a week later, then I don't deliver. Then ultimately, you say, okay, now set your own target. And I say, okay, I need two weeks. That's my target set by myself. Then I don't deliver. Would you agree that in that case, if the target was set by me, I cannot turn around and say it was unreasonable? Yes or no?
Ms Baloyi: As I said from a performance management point of view, it depends on many things. So I wouldn't actually say that, because, for me, you might not have achieved those targets because you got sick, or you had other responsibilities in-between. So the circumstances in performance management do play a role, as far as that is concerned, because performance has got its own dependencies. So I wouldn't, I wouldn't know what is it that could have happened, and if you haven't achieved, it is still my responsibility as your supervisor to ask and to check before as to the challenges that are there. That's what I'm saying – that performance has got its own dependencies.
Adv Mpofu: No, okay. You're still not listening to the question. Please, man. Listen to the question carefully. Okay. I'm sure I've said nothing about achievement of targets. I've said nothing about failure to achieve targets. Listen to my... My question carefully. I'm saying only to you, if I set my own target, whether I'll achieve it or not, is another myth. Would you agree that if I set it myself, I cannot say it's unreasonable because I set it myself? Full stop, whether... forget about achieving it or whatever, all these long things that you're saying, would you agree with that statement?
Ms Baloyi: I've never come across it. So I would not say yes or no, I've never come across such instances myself.
Adv Mpofu: No, you don't have to come across this. I'm asking you as a human being who has a brain, who can just reason it out. If you ask... you are a leader of people? Correct?
Ms Baloyi: Correct.
Adv Mpofu: You've been DDG or working at that level for some time, correct?
Ms Baloyi: Correct.
Adv Mpofu: Yeah. Now, if in that capacity as a leader, if you ask people, you say my management style is to ask you to set your own targets, and then they set their targets, would you agree that those targets those people have set their own targets. This one can say, I'll take a month; other one says I'll take two months; other one says I'll take two weeks. After that, they cannot turn around and say those targets are unreasonable. If they said them themselves, as a matter of just at a logical level, you don't have to 'come across' anybody. If that happens, would you agree that that would be a good way of setting targets?
Ms Baloyi: Adv Mpofu, I just take serious offence, when you say that if I have to ask that question, I should be a person with a brain.
Adv Mpofu: No, I'm not saying; I'm asking you, me, I'm asking you just at a logical level. That's what I mean. Anybody, like it could be, so the example I'm making could be happening at BP or Shoprite, Checkers or whatever, it doesn't have to be someone that you have met. I'm saying if a leader at that place, at BP, then says to people set your own targets, would you agree that those people are not entitled to then say those targets are unreasonable? Anywhere, could be in America or whatever. You don't have to meet anyone. I'm just asking you a statement of logic.
Ms Baloyi: Sort of.
Adv Mpofu: What? Is that a yes?
Ms Baloyi: Not really a yes. But I'm saying that – if it does happen, probably. Because for me any other employer wouldn't say to employees: when do you want to work; or how do you want to work; and when do you think you can deliver; and which kind of resources would you commit to this kind of an environment? All I know, is that target setting, it's an engagement process, that you will agree and then there'll be a role of the employee and the supervisor on what needs to happen. So for me target setting is not something that an employee decides; it's an engagement process.
Adv Mpofu: Yeah. Engagement process means both sides can come up with a proposal, correct? And then the other side agrees, right?
Ms Baloyi: Yes, it's possible.
Adv Mpofu: So I'm only saying so there can be two types then. The employer can come with a proposal and the employee agrees. Okay?
Ms Baloyi: Yes. It can be the other way around too, yes.
Adv Mpofu: Yes. Now, I'm saying if it's the other way around, yes. If the proposal now comes from the employee, and the employer agrees, you'd agree that, then the employee cannot say it's unreasonable, because it was their own proposal, correct?
Ms Baloyi: Yes.
Adv Mpofu: Thank you. Okay, whew, thanks. That's all I was asking. All right. Now. The... so the situation where you're saying you can't dispute because it might have happened in your absence, that the Public Protector asked employees to set their own targets? That was the evidence of Mr Tebele? You can't dispute that, correct?
Ms Baloyi: Yeah, I can't comment. I've never worked directly with Mr Tebele, so I can't comment on it. I don't know.
Adv Mpofu: Yes. Therefore, you can't dispute that, correct?
Ms Baloyi: Yes, I can't dispute that.
Adv Mpofu: Thank you. Well, now, the essence of your testimony, really, is that the Public Protector was very concerned about the backlog, correct?
Ms Baloyi: Yes.
Adv Mpofu: Yes. That also has been confirmed by other witnesses. She put systems, all what you and I have just discussed. Now the targets that were aimed primarily at trying to undo that backlog which she was horrified to find such a big backlog when she got to that office. You are aware of that?
Ms Baloyi: Yes.
Adv Mpofu: Right. Now, you've used a negative word to describe the situation. And I just want to explore why because you're saying it. Other employees have said this was a good thing, because it was about service delivery, and concern about the complainants and the public out there. But you have put in a negative tone, you have said that the Public Protector. You observed at paragraph 10 of your statement, page 2568, that the Public Protector was obsessed with eradicating the backlog. So I just want to explore that loaded word. Did you mean that she was concerned or very keen to undo the backlog?
Ms Baloyi: For me it's that backlog had to be done by hook or crook, regardless of the circumstances, regardless of the fact that some of these issues have been clearly stated in the APP.
Adv Mpofu: Yes, no, I'm saying ma'am. It's a question of perspective. I'm saying the very same thing. Depending on your own attitude, I suppose. Some employees have come here and said that this was a good thing, the relentless attack on the backlog because it services the public. So that's their view, they have a positive view on it. You are putting it in negative terms to say it was an obsession. So I'm trying to explore whether the problem was with the project itself or with the point of view, the attitude of whoever was observing. You accept that it was a good thing to attack the backlog, correct?
Ms Baloyi: I stated earlier when Adv Mayosi asked me the question that eradicating backlog was in the interest of the public and also the institution but…
Adv Mpofu: So that is a yes?
Ms Baloyi: I've confirmed it, to say yes, [Adv Mpofu, interrupting] It was not a bad thing to eradicate the backlog. I've stated that earlier.
Adv Mpofu: Yes. When I ask you a question and it just requires a yes or no, that will do, if you don't mind, okay? So it was a…
Ms Baloyi: Then guide me. If it's a yes or a no, then it's fine. If you want me to say yes or no, guide me, then I'll respond.
Adv Mpofu: Yeah, wherever it's possible, and of course, you're free, I'm not stifling you. If I say it was a good thing to attack the backlog, you can say yes, it was a good thing. Then if you want to expand and explain, you can explain. Otherwise, we're going to be here all week. Do you understand?
Ms Baloyi: Yes.
Adv Mpofu: Thank you. Okay. So we are in agreement that it was a good thing to attack the backlog? Yes?
Ms Baloyi: Yes.
Adv Mpofu: And it is in the public interest to do so, correct?
Ms Baloyi: Correct.
Adv Mpofu: And the backlog, particularly cases that were older than two years, that was explained to you as your one of your key priorities. Correct?
Ms Baloyi: Correct.
Adv Mpofu: Right. When you arrived there, there was what you described as a massive backlog, correct?
Ms Baloyi: Correct.
Adv Mpofu: Right. The massive backlog at the stage when you arrived was pitched at about 466 cases?
Ms Baloyi: Correct.
Adv Mpofu: And it is a fact that that was a moving target. Correct? In other words, every month, there'll be other cases that age. It's called age analysis. So if it 466 at month one, by the end of the month it could have grown by another 50 cases that have just aged in that process in that month. Correct?
Ms Baloyi: Correct.
Adv Mpofu: And therefore your estimation of 63% is misleading in that sense, correct?
Ms Baloyi: No.
Adv Mpofu: Okay, I’ll break it down in small pieces. If you arrived there, and the target was 466, six months later, that could have been 1000, correct?
Ms Baloyi: Theoretically, what you're saying, it might have been the situation. But these cases, we're not working on numbers, we are working on cases with a name. So we knew which case was registered when. The Customer Services executive will record those cases. That it's a moving target, we knew that there are these 10 cases that must be concluded by this particular period. Obviously, when you look into them, they wouldn't fall within the current financial year. If you remember what I stated earlier, I started in February, and by the end of March, we knew which cases needed to be to be concluded. So it was not going to be a moving target. With all those cases, per se, we had a way in which all these cases were categorised very clearly. We had a list of cases that will be two years in three months, in six months, actually even in 12 months. So we knew which cases to deal with, because we had a very clear project plan and the names of the cases. We know which cases will be there and how they've been classified under that. So we had not the numbers, but the names of even the complainants. That's how we classified those cases.
Adv Mpofu: Yes. Okay. Once again, ma'am, I'm going to appeal to you. Please listen to the question. I thought age analysis is not something unique to the Public Protector, it happens in every organisation with debt, whether it's debtors, or whatever. It's called age analysis, you must be aware of that at your level, correct?
Ms Baloyi: I'm listening, Adv Mpofu?
Adv Mpofu: No, that doesn't help us that you're listening. Either you say yes or you don't know, or, or whatever. But my question is, do you know that age analysis by definition means that something, let's say you're managing debtors in an organisation, or people who are not paying, so they say, there are 100 people who are not paying at the end of this month, at the end of next month, there will be new people who have now gone into the red, if you know what I mean. It's a moving target in that sense, that every month, there are new cases that are ageing, you understand that? You understand that ma'am? I thought we had agreed on this. Yeah. You and I had agreed before that it's a moving target. Because every month, there are new cases that would be ageing. So I don't know now what what's the problem?
Ms Baloyi: You said I must listen to you so I'm listening. I thought you…
Adv Mpofu: I never said you must listen to me. I said you must answer my question. I'm saying you and I had agreed that every month, there'll be new cases that age and get into the category of two years. That follows as a matter of logic, correct?
Ms Baloyi: As a matter of logic, correct.
Adv Mpofu: Yes. Now, I'm therefore saying that, if your job was to make sure that the backlog is cut down, there'd be no use in using a fixed target. In other words, let's just use the first 466 and then we resolve those 466. Because if you resolve those in six months' time, by then there might be 1000 other cases. So you have to approach this dynamically, to make sure that the backlog, as such, is kept at proper levels. Isn't that correct?
Ms Baloyi: Yes, but you'll agree with me that even if you manage the tasks, you could use different methods and different models. So there was no case that could not be accounted for that particular period that I was there.
Adv Mpofu: Okay, I think okay, I'll just move on. You said that you in the first two months, you achieved, or rather, you dealt with 284 cases?
Ms Baloyi: Yes.
Adv Mpofu: You resolved 284 cases, correct?
Ms Baloyi: Yes.
Adv Mpofu: Okay. So that would be something like 182 per month, correct?
Ms Baloyi: I'm not sure the figures that you are talking about are 182 per month, because I'm not sure whether you want to aggregate them, but I think the report is there on what has been dealt with in that particular month.
Adv Mpofu: Okay, actually, the figure is 142. I'm saying, well, it's a simple thing. If you divide 284 by two months, then you get 142. I'm saying that was the rate at which you are doing those cases, correct?
Ms Baloyi: Correct.
Adv Mpofu: But then, after that, you now resolved in the next six months, you resolved 83 cases, correct?
Ms Baloyi: Correct.
Adv Mpofu: Which was now at a rate of 14 from 142 – almost a tenth of that – which is 14 cases per month. Can you explain why that happened?
Ms Baloyi: Adv Mpofu, the cases that we are dealing with here, were the cases that when I started it was my target to finalise the backlog. What this statement means was that of the 466 cases 63 were finalised by the end of the financial year and 83, in addition to those, were finalised in October, those were the cases that were in the register in the project plan that we're dealing with a backlog then of that financial year.
Adv Mpofu: Okay, I don't understand that answer. I'm saying to you, you were doing cases at a rate of 142 per month in the first two months. If you had maintained that rate, these cases would have been finished by April. So why did you then go down to a rate of 14 cases per month?
Ms Baloyi: Those were the cases that were complicated that needed thorough investigation, because it was not a case when we arrived that something has already been done, it was that nothing at all has even commenced with that kind of a particular case. So it was not a simple case that you just deal with within a week or whatever. There are different kinds of cases, there are cases that in essence, even during that particular year, they were to be completed in two years.
Adv Mpofu: Yes. Okay. So okay, I think that's a better answer. Yeah. So you are saying that the 284 cases that you did, were the easy cases. The ones where you moved much slower were the more complicated cases, is that the explanation?
Ms Baloyi: Some of those that were resolved, some work has already commenced, then with those cases, yes, with some of the 466 cases where nothing has been done at all. But the target that I had, was I should have concluded them by 31 March 2019.
Adv Mpofu: Now, you have testified that from round about April, there were already some disagreements that you were having with Mr Mahlangu, correct?
Ms Baloyi: Correct.
Adv Mpofu: And that would have been about two months into the job, correct?
Ms Baloyi: Correct.
Adv Mpofu: And this escalated, the high watermark would have been the July Dashboard meeting, that is now about almost under six months. Just before the six months mark, correct?
Ms Baloyi: Correct.
Adv Mpofu: Now but you believe that you were purged?
Ms Baloyi: I don't believe that I was purged. I was purged.
Adv Mpofu: Yes. But you, yeah, that's what you believe. The thing is there are other people in the world who don't believe that you were purged. I think I'm sure you will allow that, that was your view that you were purged, that has not been objectively determined by anyone else. Objective. It's your subjective view. Correct?
Ms Baloyi: What you are saying, Adv Mpofu, I do not agree with you, there are people that could agree with me. So I do not believe that if there are other people that believe 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 that you want to talk about? When you say a few people, who are we talking about here? And what are their interests? And where do they come from? Where do they live? So it's up to you, you will you will definitely believe that I was not purged. Because you are representing the person that purged me. So you are within your rights not to believe what I believe. But it depends on the interests of an individual.
Adv Mpofu: No, I was not talking about myself. I'm saying that you believe that you were purged? Because that's what you have said in your affidavit. Correct?
Ms Baloyi: I said I was purged in my affidavit.
Adv Mpofu: Yes. And you've read the other affidavit of the Public Protector that says you are not purged, correct?
Ms Baloyi: Yeah.
Adv Mpofu: Yes. So that's what I mean when I say you believe you were purged. So…
Ms Baloyi: No, I don't believe I was purged. I was purged. She believes that she didn't purge me. So I do not agree with you. I was purged. For me, the manner in which I have been treated and what I've been subjected to, and the circumstances, I still stand that I was purged.
Adv Mpofu: Ms Baloyi, can you please assist us by just answering questions? Don't... relax, ma'am. There's no…
Ms Baloyi: I'm relaxed. But you cannot actually put words into my mouth. And I agree with you. That's what I'm saying that, even in my affidavit, I've stated I have been purged. I didn't say I believe I have been purged. You know, I said that I've been purged, and she might believe that she didn't purge me. It's still within her rights.
Adv Mpofu: No, but that's a lie ma'am. You did not say that in your affidavit.
Ms Baloyi: Which affidavit are you talking about now?
Adv Mpofu: Which affidavit are you talking about?
Ms Baloyi: I'm asking you because you're saying I'm lying. And you're talking about my affidavit. The onus is upon you to prove to me, by reflecting on what we are talking about.
Adv Mpofu: Okay, which affidavit are you talking about?
Ms Baloyi: I'm asking you which affidavit you're referring to, because now you have already indicated that I'm a liar.
Adv Mpofu: Okay, can you go to paragraph three of…
Chairperson: …the affidavit on the screen, flighting it.
Adv Mpofu: No, I didn't ask anyone to flight it. I don't want anyone to flight things for me, Chairperson, please.
Chairperson: No, there's also a chairperson for the inquiry who does not need to be asked.
Adv Mpofu: Yeah, but did you ask for it? Okay, ma'am, can you read paragraph three of that affidavit?
Ms Baloyi: I make this affidavit to place before this inquiry the reasons why I believe that I was purged.
Adv Mpofu: So which one is the truth? The one in your affidavit or the one you're saying, when you say you don't believe you were purged?
Ms Baloyi: I beg yours?
Adv Mpofu: You beg mine? I'm saying the... which one is the truth? The one that you said to the Committee that you do not believe that you were purged but you were purged? Or the one in your statement where you say you believe that you were purged?
Ms Baloyi: I was actually qualifying your statement which says that there are other people that do not believe I was actually purged. Because you said that's what I was qualifying in my argument with you.
Adv Mpofu: That's not how this started. I just said do you believe that you were purged, and you said, you don't believe you were purged, you were purged. It was before this thing about other people, do you remember that?
Ms Baloyi: No, you didn't say that, Adv Mpofu.
Adv Mpofu: This questioning that we are having, didn't start with me saying you believed you were purged?
Ms Baloyi: You said to me, I believe that I've been purged, and other people believe otherwise.
Adv Mpofu: No, I said that afterwards. I'm saying when I started this questioning, I said, ma'am, you believe you were purged, and you said, no, I do not believe I was purged and went on and on and on. Then I said to you that there might be people who also don't believe that you were purged. Are you denying that that's what happened just here in front of everyone?
Ms Baloyi: That's what I was asking you. Which affidavit are you referring to? Because my court affidavit is this one. The real reason that I was purged was because I was an obstacle, in this affidavit, I never said that I believe I've been purged. So if you'd referred to the affidavit earlier, I would have said to you in my court affidavit, 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 that you were looking for, or you are looking for now.
Adv Mpofu: Okay, I think you are giving false evidence to this committee, ma'am, 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 no, you were purged, you don't believe you were purged. That's the truth. So anyone who's listening to this, who's neutral, will realise that you're now just making it up as you go along.
Ms Baloyi: Adv 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 affidavit, I said, I was purged. That's why if you told me that you're referring me to which affidavit, I could have told you.
Adv Mpofu: And when I asked you which affidavit you're referring to, you refused to answer.
Ms Baloyi: Why do you ask me a question when you call me a liar, and I must actually help you to prove your point? Whilst the onus was upon you to ask me which affidavit am I referring to?
Adv Mpofu: Chairperson, I think you should try to tell the witness to simply answer the questions. Because this is it's not necessary. She's now even misrepresenting my questions. Can you ask her to just answer the questions, Chairperson, truthfully, as she has sworn?
Chairperson: Adv Mpofu. Which question do you want to be answered?
Adv Mpofu: All right. That's fine. No, it's fine, Chairperson. If you don't know, you don't know. All right. Okay. Ma’am, looks like I’m not going to get any assistance from Chair. So I think we'll go this way. So let's start at the beginning.
Chairperson: You have made a request to the chair so that the proceedings go according to what's expected. And I'm only asking you what is it that you'd want me to insist on the witness?
Adv Mpofu: Well, Chair, insist on her to stop lying. Because she just said, you were here when she said that she never said that she believed that she was purged. And now we've spent 10, 15 minutes on something that actually appears on her statement. If we carry on like this, we are never going to finish. So…
Chairperson: She's just referred to two affidavits and explained what each of those affidavits state. And the one that is here in the inquiry is an affidavit where she says she believes she was purged and in the affidavit that was placed in court she said she was purged. So you want her to confirm the version of this affidavit to this inquiry, where she says she believes that she was purged? Is that a question that you want me to put to her? So that she confirms that?
Adv Mpofu: I want you to... It's fine, Chairperson, it's fine, leave it.
Chairperson: Ms Baloyi.
Adv Mpofu: Chairperson, please. Let's move on. Really. Ms Baloyi.
Chairperson: Are you now? Are you…
Adv Mpofu: No, it's fine, Chairperson. It's fine.
Chairperson: You won't go back to this?
Adv Mpofu: Waste of time, yeah.
Chairperson: Proceed, Adv Mpofu.
Adv Mpofu: Okay, Ms Baloyi, I'm going to at the end, I will demonstrate that your answers to this issue are complete fabrications and untruthful. That you are just tailoring your evidence, as you go along, because you've been caught in a lie. You have any comment?
Ms Baloyi: You've made a statement, Chairperson, I don't think I need to respond to that. Because he is not going to ask me questions.
Adv Mpofu: I've asked the question, ma'am. At the end, if you listen carefully, I have made the statement. Then I asked a question. Do you have a comment? Question mark?
Ms Baloyi: I don't have a comment. It's still within your rights to make those statements.
Adv Mpofu: Thank you. All right. Now, you have said that you never raised these concerns when they arose in April, round about April 20... 2019. Correct?
Ms Baloyi: Which concerns?
Adv Mpofu: The concerns about what you call the constitutional transgressions within the Office of the Public Protector. You didn't raise them when you observed them first, round about April 2019?
Ms Baloyi: I raised them. In one of the meetings there is a recording when these issues were raised. I'm on record stating that we are not an Idi Amin that is going to actually crucify people unfairly. So I'm on record in the Office of the Public Protector having said that in the meeting.
Adv Mpofu: To who?
Ms Baloyi: To the Public Protector, the Deputy Public Protector, the CEO, and the executives who were also in attendance of that particular meeting.
Adv Mpofu: Is that when you say you refused to carry out the instructions?
Ms Baloyi: It was not that one.
Adv Mpofu: When did you refuse to carry out instructions?
Ms Baloyi: I never refused to carry out instructions.
Adv Mpofu: No, but I thought… are sure about that?
Ms Baloyi: Which instructions, Adv Mpofu, are you talking about?
Adv Mpofu: Any instructions. Have you ever refused to carry out instructions?
Ms Baloyi: If I refused, I wouldn't have lasted in that office. So I'm not aware of the instructions that you are talking about.
Adv Mpofu: You never refused to take steps against employees when you were asked to do so? And you still lasted in the office.
Ms Baloyi: But those are not instructions. It's an instruction.
Adv Mpofu: Okay, so you refused one instruction?
Ms Baloyi: I never refused. I was hesitant to take an instruction then. But finally, if you look at the evidence that I've presented, finally I actually implemented that.
Adv Mpofu: Yeah, but at first you refused. You said you refused.
Ms Baloyi: [shouting] I never refused. I never told anyone that I'm not going to implement an instruction.
Adv Mpofu: Yes. Okay. Again, you are misleading the commission and you are being untruthful because that's what you said in your affidavit to the commission, to this committee.
Ms Baloyi: That I refused?
Adv Mpofu: Yes.
Ms Baloyi: Which affidavit are you talking about?
Adv Mpofu: I said affidavit to this Committee. You can't use that same trick again. It's the affidavit to the Committee.
Ms Baloyi: When you look at that, on many occasions, I would refuse to take such steps. I never said I refused to take an instruction. There's a difference between what you're saying and what I've put, you know, what you are talking about.
Adv Mpofu: Yeah, well, it's worse than an instruction. It was pressure, isn't it?
Ms Baloyi: That's your view. I wouldn't comment on it.
Adv Mpofu: That's not my view, ma'am. And Chairperson? Chairperson?
Adv Mpofu: Can you tell whoever is putting the affidavits there... This is the second time and the last time I'm saying it. Nobody must put any affidavit up there until I've asked for it.
Chairperson: No, you can't do that.
Adv Mpofu: No, I can. I can. [Chairperson: No] I'm the one who's doing the cross-examination.
Chairperson: Adv Mpofu, Adv Mpofu. This is a parliamentary inquiry. It has a chairperson who leads it and direct things. It is not your instructions, and you even say it's going to be for the last time you do that, you can't do that, refrain from that.
Adv Mpofu: Chairperson, please listen to me.
Chairperson: I'm listening.
Adv Mpofu: Yeah. When did you give the instruction to put up that?
Chairperson: Throughout this inquiry, when we refer to a paragraph that is under discussion or affidavit, it gets put up and it has assisted us a great deal. So that everybody else follows where we are.
Adv Mpofu: No, okay. Let me tell you where we are. I will tell you where we are, Chairperson. How do you know where we are, before I tell you where we are?
Chairperson: We're dealing with the paragraphs that you are cross-examining, [Adv Mpofu, shouting: no] Ms Baloyi. Let's not do a dialogue. That's…
Adv Mpofu: …important. This is very important. And…
Chairperson: I want to conclude, Adv Mpofu, and I'm going to make a ruling. You can't do this. You can't do what you're doing.
Adv Mpofu: What am I doing?
Chairperson: You cannot dictate to this inquiry, what is it that we need to do. Because we follow the cross-examination, the questions. Because placed here, is an affidavit that came to this inquiry, which is a primary source, then there are other sources that in your cross-examinations are coming out. So if what would have been put there, would have disturbed your train of thought... It's one thing to say that and say you'd want to have the screen blank so that you focus on this. But you can't say it is your instruction that certain things must be up and not be up. It can't be. You came here by invitation with the Public Protector…
Adv Mpofu: To be abused.
Chairperson: …at an inquiry of Parliament.
Adv Mpofu: Yeah, but I didn't come here to be abused, neither did she.
Chairperson: Nobody's abusing. Nobody's abusing you. So please let us proceed. I'd like you to proceed with the cross-examination. Please.
Adv Mpofu: No, Chairperson it's not that. It's not going to be that easy. Please listen to me. You have to listen, I've listened to you. This, what I'm busy with now is called cross-examination. And I cannot, when I'm busy testing the credibility of a witness, I cannot have somebody else who's not in my team, and who's not me, putting up a document. It's not done, Chairperson, it's not done. You can't do this to me. It's not done. It's just wrong. I'm sure you know that you don't even have to be a lawyer to know that. [Chairperson: Thank you] You cannot... not let me finish talking.
Chairperson: I think we're done with the issue. Thank you, Adv Mpofu.
Adv Mpofu: [shouting] I'm not done. I'm not done. You might be done. I'm not done.
Chairperson: I want to recognise the Members to come in, what is it that you still want to say?
Adv Mpofu: Yes, no, I want to say this. I'm raising, I'm entitled to raise an objection, Chairperson. You are also entitled to overrule the objection. But at the very least, you must hear what the objection is. Then you can come in. I've disagreed with almost all rulings, but I've obeyed them. So let's just keep on working like that. Just hear me out, at least you can't gag me from talking. I'm saying that when cross-examination is being conducted in any form, including this one, the person who is cross-examining is then in charge of the questioning. It has never happened anywhere, that before, when you're asking a question, testing the credibility of a witness on something, somebody else puts up the very issue that you are discussing, because I could have been referring to something else, or it is seen as assisting the witness, which is not allowed to be done, Chairperson. Otherwise, this cross-examination is just a facade, or it's not cross-examination. It has never happened, it is not allowed. And I'm asking you to ask for it to be stopped. You, of course, have a right to say you don't want to do that, then we move on. But I'm just trying to assist you in how these things are done. Thank you.
Chairperson: Thank you, Adv Mpofu. Hon Mulder.
Dr C Mulder (FF+): Yes, thank you, Chairperson. Colleagues, I was under the impression that we are jointly trying to get to the truth, to understand exactly what happened. In doing so with all the assistance we can get in terms of the different issues on the table. I didn't see being put on the screen anything that was not relevant to the issue that was being discussed or being cross-examined at that moment. So I find it very difficult to understand why, if Adv Mpofu refers to a specific issue in the statement by the witness, that we, as members of the committee, are not allowed to see that paragraph and see exactly what is being said and what the argument is about. I would like to request, Chairperson, that in any case, with regard to any witness, with references might have a specific issue or specific paragraph or specific statement in the affidavit of that witness, that it be shared with the members of the committee that we can follow the argument, because in the end, I'm convinced we are all trying to get to the truth. Thank you, sir.
Chairperson: Hon Mulder thank you for that. I'm ruling that we proceed now, Adv Mpofu. And I will hand back over to you to proceed with cross-examination.
Adv Mpofu: Yes, no, we'll proceed, Chairperson. But Ibeg you to be just patient with me, so that I can respond to what has just been said. We've been here, I don't know, for many weeks now. And I don't know why Mr Mulder thinks that I need to be told that when statements are made, they're put up. I mean, surely by now, he should know that. That is what has been done. I'm raising a different point. I did not raise any specific issue to do with this. With that passage, I was simply cross-examining the witness, and I understand that Mr Mulder does not understand cross-examination or how it works. If he says it's difficult to understand for him, that's not my problem. His levels of comprehension have got nothing to do with me. I'm trying to explain that while it might be difficult for him to understand, I'm saying that it is not done that a witness being questioned, particularly on a question of credibility, is then assisted by the other side, as it were, which is, otherwise the cross examination is not worth…
Chairperson: Thank you.
Adv Mpofu: But for the…
Chairperson: Just pause. Firstly, there's no other side. So what is being shared here is an affidavit of the person, of the witness who's here. Hon Mulder, I see you have your hand up again.
Dr Mulder: Yes, Chairperson, my apology. I just want to assist Adv Mpofu as we…
Adv Mpofu: I don't need your assistance. I don't need it.
Chairperson: Adv Mpofu, a member is on the platform. I have recognised a member, [Adv Mpofu: no, you must recognise me]. Adv Mpofu, I'm asking you not to continue doing what you're doing, [Adv Mpofu still shouting] there is a member on the platform. There's a member on the platform that I have recognised. Hon Mulder.
Adv Mpofu: …patronise me, you must not patronise... [keeps shouting over the Chairperson]
Dr Mulder: Thank you, Chairperson. I'm trying to put some truth in this meeting. I do understand cross-examination, as I am an admitted attorney of the High Court of South Africa until today. So I understand exactly what it's about. And I repeat my request that when we refer to statements of witnesses, that you please put that on the screen so that members can follow what the process is. Thank you, sir.
Chairperson: Thank you, Hon. Mulder. Adv Mpofu, I'm asking you to proceed with cross-examination. Adv Mpofu. I'm asking you to proceed with cross-examination. You're muted. You're muted.
Adv Mpofu: Yes, I was saying, yeah. If he's an admitted attorney, that would explain why he's not a practicing attorney. And I want to know whether he's ever...
Chairperson: Thank you. Let's go to the cross examination.
Adv Mpofu: I'm still talking, Chairperson.
Chairperson: Advocate, Adv Mpofu, please go to the cross-examination. I'm not going to allow the dialogue.
Adv Mpofu: Chairperson, I'm talking you can't…
Chairperson: …to proceed with the cross-examination.
Adv Mpofu: Relax. I'm going to continue with the…
Chairperson: Proceed with your cross-examination, don't debate with members.
Adv Mpofu: No, I'm not debating with any members, I'm addressing you. I am saying that the Mr Mulder or any other attorney in this country, worth his salt, must, will tell you that it never happens that when a witness is being cross-examined, somebody else puts up a document where the cross-examiner is not directed for that document to be put. Otherwise, he must go back to law school. Okay. Now, Mr... Ms Baloyi, you, before that debate, you've said that you said that on many occasions, you refused to take steps that were you were being pressurised to take. And yet before this, you said you never said you refused? Which one is the truth?
Ms Baloyi: Adv Mpofu, when I drafted that affidavit that you are seeing in front of you that you are referring to. It was drafted by my attorney, Eric Mabuza. It was presented in court by Adv Ngcukaitobi. Also the same thing with the other affidavit, I was assisted by attorneys. I'm not an attorney. But what I'm talking about is if you'd like us to debate along those lines, and I think it's another aspect, but what I'm saying is, I never said I refused instructions; I said to take certain steps. There's a difference between an instruction and implementing it by taking certain steps. I never mentioned in that affidavit that I refused. I said I refuse to take certain steps; not refusing instructions. And that's how I read it and understand that affidavit.
Adv Mpofu: Okay. Those steps were steps that were in respect of the pressure that was being put on you by the Public Protector, correct? Correct, ma'am?
Ms Baloyi: Not only through her, but also with the Chief of Staff and also with the CEO. Yes.
Adv Mpofu: Yes. Yes. So that's the point I was trying to make, okay. I was saying, therefore, it's worse than an instruction, pressure. An instruction could come in a non-pressurised way, correct?
Ms Baloyi: I'm not sure what you're referring to. Maybe clarify what you want to ask.
Adv Mpofu: Yes. If I say, Ms Baloyi, as your boss, I'm instructing you to please go and visit the KZN office. That's one thing. But if I'm putting pressure on you to do so, then it's worse than the first example. Correct?
Ms Baloyi: Maybe.
Adv Mpofu: All right. Now, if it is so, therefore pressure is worse than an instruction, then you refused a pressurised instruction. That's even worse than refusing a polite one?
Ms Baloyi: I refused to take certain steps, for instance, of charging people for, for certain things that I believed that that instruction if challenged it's. Firstly, it's unfair to charge people for those issues. And another aspect is, when I looked into the circumstances, I had to make an informed decision. So that statement is not talking about instructions, it's not talking about... I refused to take certain steps, for instance, to charge Ms Mogaladi whilst they are other executive managers and provincial officers that are not meeting their targets, and that actually, are with other executive managers. So I'm talking about such steps, that, as I stated earlier to Adv Mpofu. To put it in context, I've stated even in my affidavit inquiry that there are certain measures that you know, could be applied where the targets were not met by or by just immediately dismissing, or charging people.
Adv Mpofu: Okay, who instructed you to charge Ms Mogaladi?
Ms Baloyi: The Public Protector instructed me to charge Ms Mogaladi, as well as the the CEO.
Adv Mpofu: Yes. And did you obey that instruction? Or did you disobey it?
Ms Baloyi: As I stated on the James Wickstrom issue. I actually did my work, and I couldn't have charged her when the matter was closed in 2015.
Adv Mpofu: Okay, so you refused to follow that particular instruction?
Ms Baloyi: I didn't refuse. It was not worth it. Because it was not based on fact, it was, it was inaccurate information that that matter is outstanding. The matter was concluded in 2015. In that it's a matter that was dealt with by the Public Protector, the Deputy Public Protector and its own record, and then I've charged her and end up with an egg on my face. For me, I had to check the veracity of that information. So that I satisfy myself that it's worth charging her. When I established the fact, we all agreed that there was no need to charge her.
Adv Mpofu: Okay, so this has taken too long. What's your final word, is that you did not refuse to take instructions, or to, rather to implement instructions?
Ms Baloyi: No, I've never refused to implement an instruction, it's that I implemented it differently and still achieved the same results.
Adv Mpofu: You never refused on many occasions, to carry out instructions?
Ms Baloyi: I never refused to carry an instruction. I refused to take certain steps that I refused to carry instructions that, to me, came up with unlawful action that I had to take.
Adv Mpofu: So you refused unlawful instructions?
Ms Baloyi: I never refused. I never, I never refused to carry an instruction. I refused to carry certain actions that came with that instruction.
Adv Mpofu: Okay, what's the difference? You never refused to carry out when the PP had given you instructions to take certain steps?
Ms Baloyi: No, I never refused. There was an instruction that take appropriate action.
Adv Mpofu: All right, can you, can whoever was abusing my cross-examination, now put up paragraph 14.
Chairperson: At that point, we're going to take a 15-minute break and come back and flight that paragraph.
Adv Mpofu: Can I just finish this part? I beg you, just give me one minute so that I start on something else?
Chairperson: One minute, okay. All right. Tshepo? Just repeat the paragraph, Adv Mpofu. Just repeat the paragraph.
Adv Mpofu: Paragraph 14, Chair.
Chairperson: Okay, one-four. There you go.
Adv Mpofu: Now, okay, can you read from the beginning, Ms Baloyi? And then maybe after the break, we'll try and reconcile your statement that you never refused instructions but steps. Start, the PP's pressure. Could you read it aloud, ma'am?
Ms Baloyi: Oh, you want me to read it?
Adv Mpofu: I want you to read it, please.
Ms Baloyi: Thank you. The PP's pressure on me and other executives to take disciplinary measures against staff who reported to us was relentless. On many occasions, I would refuse to take such steps against staff members who reported to me after the PP had instructed me to do so in circumstances where they had furnished me with reasonable explanations for their failure to perform the tasks at issue.
Adv Mpofu: Okay, so this would be in circumstances where the PP had instructed you to do so, is that what it says there?
Ms Baloyi: Yes, I said, where I've been instructed to take such action. A disciplinary action can be in many ways, and in my, and in my statement is very clear, Adv Mpofu, that, on many occasions, I would refuse to take such steps.
Adv Mpofu: Thank you, ma'am. Thank you, Chair, we can go to tea now. Thank you, Chair.
Chairperson: Thank you, Adv Mpofu. We pause for 15 minutes. We're back after 15 minutes.
Chairperson: Welcome back, colleagues. Ms Baloyi, are you there?
Ms Baloyi: Yes, I'm here.
Chairperson: Thank you. Welcome back. Advocating Mpofu.
Adv Mpofu: Thank you, Chairperson.
Chairperson: Please proceed.
Adv Mpofu: Thank you, Chairperson. Ms Baloyi, are you generally a dishonest person or is it just today?
Ms Baloyi: I will not respond to that question Adv Mpofu.
Adv Mpofu: Okay. All right. Now. Do... you've also been in management and leadership positions where people who are serving probation are reported to you, correct, ma'am?
Ms Baloyi: Correct.
Adv Mpofu: And know that probation is not just about performance, but it's also about behaviour and suitability in general. Correct?
Ms Baloyi: Correct.
Adv Mpofu: And you would agree that somebody who's dishonest should not, would not normally be confirmed for a senior position in a place which needs fidelity? Correct?
Ms Baloyi: Depending on the circumstances of the organisation. I'm not sure, because it depends on what is happening in that organisation.
Adv Mpofu: Okay, in which organisation would you confirm someone who is dishonest?
Ms Baloyi: Depending on what, I don't know any other organisation that if somebody has been dishonest, to save the organisation probably, depending on the values of that organisation, you will stay longer in other organisations which are reputable. This honesty might not be seen in their interest, depending on the values in some organisations when you are dishonest you can stay as long as your masters are happy about it.
Adv Mpofu: Oh. So have you heard of an organisation that has as one of its values, dishonesty?
Ms Baloyi: I've never heard of that value but I'm talking about if the leadership values and the leadership in that organisation are comfortable with people that are dishonest – as long as it serves their interests – they will stay.
Adv Mpofu: They'll stay, okay. Do you think in the Public Protector environment, you agree that, among other things, people deal with sensitive information, and that confidentiality and dishonesty or rather confidentiality and honesty should be some of the values that are paramount?
Ms Baloyi: Correct.
Adv Mpofu: Right. Now, you said that the Public Protector's leadership style was authoritarian, another negative word. And you've also said that… when did you ever hear the Public Protector saying she must be called madam?
Ms Baloyi: Yes.
Adv Mpofu: To who?
Ms Baloyi: I remember that we were in a meeting and there was an issue around the behaviour of Cleo and that she was being disrespectful.
Adv Mpofu: I see. That Cleo, the one who called the Public Protector by her first name?
Ms Baloyi: Correct.
Adv Mpofu: I see. So it was in that context, that she must be addressed as by her surname, or as madam, or as the Public Protector?
Ms Baloyi: Correct.
Adv Mpofu: So why did you not say that she did not want to be addressed by her first name, why do you put it... You said she's authoritarian, and she must be addressed as madam. So you're portraying a completely different picture out of context.
Ms Baloyi: Can I tell you my context of authoritarian?
Adv Mpofu: No, no, I'm…
Ms Baloyi: Because it's not related to that, then I can qualify my statements. If you want me, I'll do that. But it's not related to Cleo, that authoritarian. If you want me to clarify it, I can clarify it.
Adv Mpofu: But the authoritarian is related to the allegation that she wanted to be called madam?
Ms Baloyi: No, it's not related.
Adv Mpofu: No, but it is ma'am.
Ms Baloyi: Isn't there... Can you please reflect my statement, so that I can look at it?
Adv Mpofu: No, I'm... I didn't say anything about the statement, don't preempt me. I'm saying that, you, your statement that she must be called madam is an explanation of why she's authoritarian. What do you mean not related?
Ms Baloyi: The matters are not related, Adv Mpofu.
Adv Mpofu: Okay, then you can go to your statement, go to paragraph 12. Did you write this statement? You see there, you say the PP's leadership style was authoritarian. She must be addressed as Madam. Now you're saying the two things are not related?
Ms Baloyi: I think between those statements, there is a full stop. Because of if there was a comma, they will be related in terms of how I understand it. [Adv Mpofu: I see] But actually, when you look at the second one, there's a comma. They are related. So the two statements are not related.
Adv Mpofu: Are you being serious now? Just because there's a full stop?
Ms Baloyi: Adv Mpofu, you asked me a question, and I responded to it. And I said, if I read this statement, then I will be able to respond to your question.
Adv Mpofu: Ms Baloyi this is not a small game. This is an important issue of somebody's career. I'm saying no, I'm reading this statement. When you say the PP's leadership style was authoritarian. She must be addressed as madam. Those two things are clearly related. They're intended to be related by whoever is writing that. Putting those sentences together, next to each other. Whether it's a comma or a full stop is immaterial. What do you say to that?
Ms Baloyi: My first language is not English, it's Tsonga. And my writing is actually different from other people. And I am saying to you the two statements are unrelated. You can read them differently. But I'm still saying that the two statements are unrelated.
Adv Mpofu: Yes, no, in any language, ma'am, whether it's English or French, or whatever. I'm saying that the statements are clearly meant to be related to the reader of that statement. Do you dispute that?
Ms Baloyi: Yes, I dispute it.
Adv Mpofu: Okay, I put it to you that once again, you are being dishonest and untruthful and misleading this Committee? You are, I think, for the third time, making yourself guilty of perjury.
Ms Baloyi: We'll take it when you know this process is finished, but I cannot subject myself to statements that I do not actually, I mean, I wrote. If that's your interpretation, unfortunately, I cannot do anything about it.
Adv Mpofu: Who wrote the statement?
Ms Baloyi: The evidence leaders assisted me. [Adv Mpofu: Mmm] Yes.
Adv Mpofu: The evidence that was given by Mr Tyelela was that the PP is referred to like that by everyone, PP. No, she's never insisted that everyone must call her madam. In fact, I think we have many emails from the likes of Mr Kekana, which start with as "Hi PP", and then go on to say whatever. That was the real culture, not the one that you're trying to portray, correct?
Ms Baloyi: I don't know. I don't know. And I cannot comment because I've not seen what other people are saying. As I said, if I've seen it, or I've heard it, then I will be ultimately able to give you a definite answer.
Adv Mpofu: Okay, so you've not... in the eight months that you're there. Or nine months, you never heard people addressing her as PP?
Ms Baloyi: I've heard them talking about PP. When she's not there, they call her Busi.
Adv Mpofu: When she's not there, they call her?
Ms Baloyi: When they're not addressing her, talking about her, they'll call her Busi.
Adv Mpofu: Yes, no, that's fine. I'm saying when she is there and they're addressing her in the meeting, or Dashboard, or whatever. You've never heard them calling her PP?
Ms Baloyi: I've heard them, and I've also called her PP.
Adv Mpofu: So the impression that you're trying to create by that statement is false? That she must be addressed... no, the impression that she must be, in other words must, she must be addressed as, as Madam. In other words, she was insisting to be addressed as Madam, that is false?
Ms Baloyi: Why was Cleo actually removed from her office?
Adv Mpofu: If you say, don't call me by my first name, to you, that's the same as saying you must address me as madam or say, doctor or my lord, or honourable or those kinds of colonial titles?
Ms Baloyi: I'm 100% sure that if that was not [seen as] a serious act of misconduct, Cleo would still be her spokesperson.
Adv Mpofu: No, no. Please listen to me. You know that the case of Ms Mosana was that firstly she was not performing her duties, correct?
Ms Baloyi: I'm not aware of that to date, as far as I'm concerned. I don't know about it.
Adv Mpofu: Well, the evidence of Mr Tyelela is that there were two issues that were raised. One was not performing her work, and secondly, was disrespecting the Public Protector. Are you disputing that?
Ms Baloyi: I'm not aware because when that happened, I was not in that office.
Adv Mpofu: So therefore, you cannot tell the Committee as to what happened, if it was the one issue and not the other. In other words, you can't say that, if she had not called her by her first name, she would still be in that office, because it could have been the other issue was more important, correct?
Ms Baloyi: I don't know. But if it was not important, it wouldn't have been mentioned.
Adv Mpofu: Yes, that's what I'm saying. You don't know, correct?
Ms Baloyi: I don't know. But all I'm saying is that if it was not important, it would not have been an issue. Having worked with Mr Tyelela, he wouldn't even have mentioned that.
Adv Mpofu: Anyway, okay, let's move on. So I'm saying that is the fourth time that you are misleading the Committee, because the statement that she must be addressed as Madam is deliberately misleading – now that we have looked at the context, correct?
Ms Baloyi: No, I don't agree with you.
Adv Mpofu: Okay. Then you said she must be bowed down to quite literally, who said you must bow down to her, literally?
Ms Baloyi: Yes, the issue that when she enters the room, we should all rise…
Adv Mpofu: No but rising and bowing down are the opposite actions. You said she must be bowed down to quite literally, you know what to bow down is?
Ms Baloyi: I know, I'm still talking. That is one aspect that I can tell you. The other aspect was there was an incident where we issued a report. A meeting was called later, and I was in the meeting, which I believe was a kangaroo court, where I've been asked to write an email to her and apologise, but I said the statement was not made by me. We all had a responsibility; the spokesperson had the responsibility of checking those kind of statements. I was told that this is what I need to do, because if I don't do that…'because she prefers people to apologise all the time, and you know her character'. That's what I ended up doing and for me, that is when you talk about being 'bowed down to'. I could not take full responsibility for what happened. But I was told that you need to ultimately do that for her to not punish you. My interpretation was if somebody has to be bowed down to even if we are not wrong; I found that incident irrational for me. I was not even given an opportunity to explain myself, but I was actually told that is it what I need to do.
Adv Mpofu: Okay, so that's what you mean. So this statement is not true, that she must be bowed down to, quite literally. You know, what literally means. She must be bowed down to, not in a figurative way, but in a literal way. So that's false, correct?
Ms Baloyi: I do not agree.
Adv Mpofu: Who said that the Public Protector must be bowed down to?
Ms Baloyi: It was Mahlangu.
Adv Mpofu: He said that to you?
Ms Baloyi: Yes.
Adv Mpofu: What did he say?
Ms Baloyi: He said to me that if you don't do that – the Public Protector be bowed down to. I said but that is not right because you also need to take accountability. He said to me that if you don't actually do that, this matter, it's not going to be taken lightly as you think.
Adv Mpofu: What matter was that that he was discussing?
Ms Baloyi: It was the Mildred Oliphant matter.
Adv Mpofu: And what were you supposed to bow down to?
Ms Baloyi: Bow down to the fact that I take full responsibility for the media statement.
Adv Mpofu: So you didn't actually have to bow literally? You know what to bow is? You say you didn't write the statement. Do you know what it means to bow down?
Ms Baloyi: You can educate me, Adv Mpofu.
Adv Mpofu: No, you can educate me. You're the one who wrote this. Do you know what bow down means. If you don't know, I can educate you, but first you must tell me you don't know.
Ms Baloyi: I know.
Adv Mpofu: What is it?
Ms Baloyi: It's bow down.
Adv Mpofu: Yeah. How? What... can you demonstrate to us? What do you do when you bow down?
Ms Baloyi: When you say that I must demonstrate, I'm not demonstrating the action, but I demonstrate what happened that actually would lead to me bowing down to her.
Adv Mpofu: Anyway, all right. Now, the issue of probation. You were under probation. Page 2200, Chairperson. Can you go there? You signed the contract of employment, correct?
Ms Baloyi: Correct.
Adv Mpofu: And you knew that your probation period was six months, correct?
Ms Baloyi: Correct.
Adv Mpofu: Now, before we get to the contract, can you explain if you were being... you said you believed you were purged, correct?
Ms Baloyi: Correct.
Adv Mpofu: Now, if you are being purged for all these things that had happened since April, then why do you think that they did not simply just let you go at the end of June, of July?
Ms Baloyi: That's for them to answer because they didn't even communicate anything to me in July.
Adv Mpofu: No. Just hear me out. I'm saying according to you, the disagreements started round about April, correct?
Ms Baloyi: There were disagreements, not necessarily in April. But what happened in April was amongst those. Yes, I hear you.
Adv Mpofu: Okay, I'll take that as a yes. They worsened and one of the crescendos or the high watermark was in the July Dashboard meeting, correct?
Ms Baloyi: Correct.
Adv Mpofu: Yes. Now, I'm saying all this was before the end of the six-month period for your probation, correct?
Ms Baloyi: No.
Adv Mpofu: I thought you said to Ms Mayosi that your probation ended on 1 August, so 31 July?
Ms Baloyi: Yes. What I said was my probation could have been confirmed or not confirmed by end of July. But most of the issues happened beyond July that for me were of concern.
Adv Mpofu: No, leave the issues beyond July. I'm talking to you only about the issues that happened before the end of July. Okay?
Ms Baloyi: Which issues are you referring to Adv Mpofu?
Adv Mpofu: Let me start again from round about April, the disagreements started, correct? Some of them?
Ms Baloyi: Some of them?
Adv Mpofu: Yes. This escalated until, as I say, the crescendo or the peak of this happened in the July Dashboard meeting, correct?
Ms Baloyi: The peak was not actually in July. I think it was after July, one of them. Yes.
Adv Mpofu: Okay. So you are changing your answer?
Ms Baloyi: I'm not changing that answer. But I'm trying to tell you that during July, it was the peak, especially when we talk about July, I'm talking about the meeting of 31 July, which was the last day of July, it was not during July. When you look into the issues that happened – if you look at August you look at September and October, there have been various issues. Hence when you look at the final letter, it's talking about a lot of things that have happened and not necessarily before July or after July. So if you want me to specify all those issues, I can gladly do so. The 31 July was when we got to know how we were all viewed, including myself.
Adv Mpofu: Please listen to my questions carefully. I know that there are issues that happened post 1 August. I'm not questioning you about those; we will come to those. I'm confining my questioning to the issues that happened before the end of the probation period. Are you with me?
Ms Baloyi: I'm listening. Yes.
Adv Mpofu: Yes. Now, I'm saying, earlier, I know you've changed the answer, you agreed that it started after about two months and went on up until the six-month mark, which was in July. Now, all I'm asking you is if all these things had happened before the end of your probation period, and they wanted to purge you or to get rid of you – all the things that you're saying – then the simple thing they would have done is simply not confirm your appointment at the end of July. Then we wouldn't be here, correct?
Ms Baloyi: If they knew what they were doing and were managing, probably they could have done it decently and correctly within the framework of the law, including their own internal policy.
Adv Mpofu: No, no, remember, they're not doing it within the framework of the law, they are now busy purging you and victimising you. I'm saying if they wanted to do that, they would have simply not extended your probation period on 1 August, correct?
Ms Baloyi: Correct. Did you know that they even wanted to get rid of me before the end of July?
Adv Mpofu: No, I didn't know that. Because you didn't put it in your statement.
Ms Baloyi: Exactly, it's water under the bridge now. But I'm putting it to you that they wanted to get rid of me before the end of July.
Adv Mpofu: Good. Thank you, then that makes it even worse. They wanted to get rid of you before the end of July. So the simple thing then they would have done, is just to tolerate you until the end of July at the end of your probation, if they wanted to get rid of you.
Ms Baloyi: I like your word 'tolerate'. You know, in a public institution, people instead of doing their work, they just tolerate me. All I'm saying to you is, in that kind of an institution, you expect people to do the right thing, because we have even made findings against other state institutions for doing what they did to me.
Adv Mpofu: To... do you even understand what I'm asking you? I'm saying if they wanted, if these issues were culminating since April up to July, and you're adding they even wanted to get rid of you before the end of July; I'm saying, then come the end of July, which is the end of your probation period, then they would have just let you go and not extended it by any period or give you another chance or anything like that, correct?
Ms Baloyi: Adv Mpofu, in the performance management environment, when somebody is on probation, when you extend their probation, you inform that particular person, you assess their performance, everything is documented as proof. 'I, Vussy Mahlangu, met with Basani Baloyi on this particular date, and this is what we agreed upon'. This is what he has not actually done. So for me, as I said, if somebody has got power and authority, you can do whatever you want. But within the framework of performance management, there was a responsibility to do those things.
Adv Mpofu: No, no, I agree with you 100%. But remember, here, we're talking about people who want to get rid of you, by hook or by crook, as you put it. So we don't expect them to do things, necessarily by the law. I'm saying if they wanted to get rid of you by hook or by crook, without breaching the law, then all they needed to do was to wait for the six months and simply not renew your probation, correct?
Ms Baloyi: I don't know, anything was possible in that environment. I mean on a daily or a monthly basis that when you work in that kind of an environment where you receive such threatening letters or notes, it actually unsettles you. At the end of the day you will know that anything is possible anytime.
Adv Mpofu: And what they did here was actually to extend your probation, correct?
Ms Baloyi: It was not extended. Mr Mahlangu confirmed that it was not extended, and even Mr Gumbi, in our discussion with Mr Mahlangu, it was not extended. Because if it was extended, it would have been communicated, because it's even there in their policy about extending. So it was not an extension.
Adv Mpofu: Okay. So nothing was communicated to you, correct?
Ms Baloyi: Nothing.
Adv Mpofu: So also, if it was being confirmed, it would have been communicated, correct?
Ms Baloyi: If it was confirmed, yes, it would have been communicated. Like…
Adv Mpofu: Yeah, sorry, ma'am, you can finish.
Ms Baloyi: I'm saying like the CEO, when I was doing the Nkwinti report that I needed to finalise so that he can be permanently appointed. Obviously, I would have known that that is the process, in my own understanding, that needed to be followed. So either way it was not actually communicated to me. When you look into the probationary policy, and the disciplinary policy, my circumstances required them to actually revoke some of the clauses in a disciplinary matter, because they are talking about misconduct, which was not communicated to me. They're talking about performance, in which the probationary policy could have been invoked, in terms of dealing with me. None of those internal policies before we even look into legislation or the frameworks that govern the two issues.
Adv Mpofu: Yes, ma'am. Ma'am, my question is much more simpler than that. You're saying come 1 August, nothing was communicated to you, correct?
Ms Baloyi: Yes.
Adv Mpofu: So the situation therefore could either be any one of three possibilities, which is confirm, annul, or extend? You did not know which of the three it was, correct?
Ms Baloyi: What do you mean, when you say I didn't know? For me, it's by the end of July, as per my employment contract, there should have been a communication to that effect.
Adv Mpofu: Yes, no, I agree with you. Ms Baloyi. I'm saying. Okay, let's take it one step back. You asked, do you know that when it comes to probation, when the period ends, there are three possibilities? Either it will be confirmed. In other words, your employment is confirmed, or the probation will be annulled, in other words, you are terminated. Or it is extended. Those are the three possibilities; nothing else can happen. Do you agree with that? Correct?
Ms Baloyi: Yes.
Adv Mpofu: Now, I'm simply saying to you, none of those three things were communicated to you at the end of July, correct?
Ms Baloyi: Correct.
Adv Mpofu: Therefore, you are saying it was not extended? Because nobody said to you it was being extended.
Ms Baloyi: Nothing was done. Not extended, nothing was done.
Adv Mpofu: Yes. None of the three things was done, correct?
Ms Baloyi: Correct.
Adv Mpofu: So it was not extended; it was not terminated; it was not confirmed?
Ms Baloyi: Correct.
Adv Mpofu: Right. Now I'm saying therefore, then the… but your whole case was that your employment had been confirmed. So that cannot be correct; that's false. Correct?
Ms Baloyi: I never said in any case that not my employment has been confirmed.
Adv Mpofu: Really? Well, that's what you said in the High Court case, at least. That your contract, by not saying anything to you, it meant that your contract has been confirmed. Are you denying that now? Ma'am, are you still with us?
Ms Baloyi: I don't talk to that statement in isolation of the probationary and disciplinary policy of the Office of the Public Protector. I'm still with you. Can you actually flight that so that we can see the context of what you're talking about?
Adv Mpofu: Okay. No, that's exactly the policy I'm referring to. I'm saying that you and I have agreed that policy envisages three possibilities, none of which actually happened.
Ms Baloyi: But the policy does not happen in a vacuum, a policy needs to be executed. So whoever actually approved that particular policy and the delegated authority to implement that particular policy.
Adv Mpofu: Yes, yeah. On that, we agree. But that's not what I'm asking you about. I'm simply saying that. So you're saying it was not your case that your employment was confirmed?
Ms Baloyi: No, no, I say put those documents or I can look at them and with those policies, so I can tell you the context of my statements.
Adv Mpofu: Okay, I will do that. But I'm asking you a very simple question. What is your case that what happened after, let's say, 2 August? Were you working as a confirmed person? Or was the probation extended?
Ms Baloyi: Adv Mpofu, we are talking about the Office of the Public Protector, which also deals with matters related to labour. I'll put it to you and my colleagues can attest to this: if it was another state institution that has done that, the Public Protector would have made a finding. For me, she is not actually complying with her own internal policy, knowing not communicating such a decision has implications. Much as you have stated earlier that we are dealing with somebody else's career, the same case should have been applied to mine – that you're dealing with my career. So you would ultimately be happy to keep me in limbo; that was very much unfair. If really there were good intentions and she wanted to lead by example, she wouldn't have done that. And I can tell you we have made findings related to that and would ultimately ask institutions to implement those. So I wouldn't assume whatever. But what I'm saying is she had an obligation to make a decision, as per the employment contract that she signed.
Adv Mpofu: Yes, no, no, that may well be so. But again, I was asking you a completely different issue. I'm saying your case. All right, let me take you to the policy that you're talking about, or rather to the contract that you signed. 2200, please? Thank you. Okay, let's analyse that clause together. You signed this contract. We understood what it means, correct?
Ms Baloyi: Correct.
Adv Mpofu: Okay, first sentence says you will be on a six-month probation period, commencing from the date of appointment, and your probation may be extended for a period of not more than 12 months. You understand that part?
Ms Baloyi: Very well.
Adv Mpofu: Okay, it does not prescribe the period of extension, it just must not be more than 12 months, correct?
Ms Baloyi: Correct.
Adv Mpofu: Right. So it could be eight months, it could be two weeks, it could be two days. It doesn't really matter, as long as it's not more than 12 months, correct?
Ms Baloyi: Yeah.
Adv Mpofu: Yeah. All right. Now, so they said during this probationary period, your conduct and work performance will be regularly appraised in order to determine your suitability for the post. Do you understand that part as well?
Ms Baloyi: Very well, very, very well that my performance will be regularly appraised.
Adv Mpofu: Yes.
Ms Baloyi: I understand you very well, Adv Mpofu.
Adv Mpofu: Yes, ma'am. Then it says the employer may reasonably extend the probationary period, and shall provide the employee with reasons for such extension and afford the employee an opportunity to make representation in this regard. Correct?
Ms Baloyi: That is correct. This is not applicable to the situation at hand, with mine.
Adv Mpofu: And then 5.3 says, at the end of the probationary period, in other words, when it ended - as I say, whether it's a month or two weeks or three weeks after the end date, the employer may terminate the employment relationship in accordance with the requirements of the Labour Relations Act and the notice requirements in the Basic Conditions of Employment Act. Do you understand that?
Ms Baloyi: Correct.
Adv Mpofu: Right. So what seems to have happened here, is simply that you were given an opportunity to show cause why the probation should not be terminated, correct?
Ms Baloyi: Not terminated, confirmed.
Adv Mpofu: No, you…
Ms Baloyi: Look at my letter, it doesn't talk about termination, it talks about confirmation.
Adv Mpofu: Okay, we'll do that. That letter talks about... The first letter, ma'am, the one that was signed by the Public Protector, or where she inscribes, talks about non-confirmation. That's the same thing as termination, we agree?
Ms Baloyi: No, that was after I responded, so we are talking about managing this particular process. That's a letter that informed me… I want us to go to the letter that informed me to make a representation. I'm not talking about that letter inscribed by the Public Protector, that was my passport to go out of the premises; that was a termination letter.
Adv Mpofu: Okay, the second. All right. Let's then take it step-by-step. The first one was for you to give reasons. Except that the PPSA has not been able to confirm your employment and considered it necessary to afford both yourself and PPSA an opportunity to continue assessing your performance and suitability for permanent employment in the position. In other words, to extend the probation.
Ms Baloyi: No, I'm not talking about that letter, Adv Mpofu.
Adv Mpofu: But there's only one letter, ma'am. It's okay. Go to…
Ms Baloyi: There are two letters. There is a letter that asks or requests me to make a request…
Chairperson: Just a pause, Ms Baloyi. Adv Bawa.
Adv Bawa: I don't want to stop a big debate. Mr Mpofu, would it assist you if we flighted it?
Adv Mpofu: No. The letter that you're talking about… You've said it was not the one where the PP made an inscription. So we can rule that out. That's not the one you're talking about. Correct?
Ms Baloyi: Yeah, that letter was a dismissal letter that the PP inscribed.
Adv Mpofu: Yes. Then putting that aside, there's only one other letter then. That came from Mr Mahlangu to you regarding this issue we are discussing, correct?
Ms Baloyi: No, there are two letters.
Adv Mpofu: Okay. Let's do it like this. Go to page 2338. You can flag that now. Okay, that's the first letter. Can you... it's addressed to you. Then if you go to…
Ms Baloyi: Excuse me, advocate. I wanted us to talk first about the letter you said was talking about termination. Now we're looking at this letter; it's talking about confirmation.
Adv Mpofu: Yes. I told you I was talking about the letter with the inscription of the PP, but you took you are taking us to this one. I'm saying that's fine. I'm agreeing with you. Let's start with this one. Okay. Relax, okay, so let's start…
Chairperson: Pause. Adv Bawa.
Adv Bawa: The letter from the PP also says non-confirmation of permanent employment.
Adv Mpofu: Yes, that's the one she calls the terminate... termination letter with all... the witness and I have agreed on that one. That is about termination or non-confirmation, which is the same thing. But her point is that this one does not talk about termination or non-confirmation. And I agree with her. So I'm saying let's start with the one where she wants to start, if you don't mind. Okay? Okay, so Ms Baloyi, then we'll walk through to the termination letter. So this letter, the first one, let's call this the audi letter, the letter where you are asked to make representations. Right?
Ms Baloyi: Correct.
Adv Mpofu: Right. Now in this letter of 8 October, it then says, invitation to make representation on confirmation of permanent employment. That's what you were referring to? Correct?
Ms Baloyi: Yes.
Adv Mpofu: Yes. As opposed to the one of non-confirmation. I understand that.
Ms Baloyi: Yes, this is where... That's what I was talking about. I said to you when you raised the question that when look at that first statement, which I had a problem with and I still challenge it even today. How do you actually develop a policy, and you still do not comply with that particular policy? And even when you are aware that you have not complied with your own policy, you decide to keep quiet, you don't communicate about that particular policy. Then two months later, you want to talk about as we are all aware, well aware. It's not only being aware, but well aware. I'm stating that you've got your own policy that you selectively decide which clauses or content to implement at a particular stage. That's what I was talking about when you asked me the question – that actually they could have done it, but it was intentionally not done because as you are well aware, they were not complying with their own policies. You still have the confidence to put it on record, that you were aware but still didn't want to comply with your own policy. You didn't even communicate that kind of a decision. I wanted us to look at this letter so we clear that. It does not matter that it was extended. It was a matter that they were aware that my probation came to an end and there was no effort in terms of the policy to deal with that particular matter. That's what I wanted to talk to you about earlier.
Adv Mpofu: Yes, yes, ma'am. That… but this is their version. Okay, if you go to paragraph three of that letter, says, as you're well aware your probation period was supposed to expire on 1 August 2019. Do you understand that part?
Ms Baloyi: Yes.
Adv Mpofu: Yes. Then they say, however PPSA has not been able to confirm your employment, and considered it necessary to afford both yourself and the PPSA an opportunity to continue assessing your performance and suitability for permanent employment in the position of COO. Do you understand that?
Ms Baloyi: I don't understand it but it was a convenient statement for them to do it. They knew; they would have never done that to other employees. But that was done specifically to me.
Adv Mpofu: No, you might disagree with it, but do you understand what they're saying?
Ms Baloyi: Sort of.
Adv Mpofu: All right. Then it says in the first year, I think you are referred to this about the alleged misconduct that make representations why disciplinary action should not be taken various audi letters, copies and so on. Then he says on numerous occasions they discussed your performance and impressed upon you to conduct yourself in a manner that is befitting the role of a COO. And explained the importance of timeous delivery and quality deliverables? You understand that?
Ms Baloyi: Oh, yes, I can read it. And I see it.
Adv Mpofu: Yes. Then they say – I'm jumping to paragraph eight – your overall job performance, interpersonal relations, and general conduct has failed to meet the required standard and level of expertise from a person with your qualifications, expertise and skills set as required and expected to occupy the position of COO. Do you understand that? You might, I know you disagree with it, but that's what they said to you. Correct?
Ms Baloyi: Yes, which is a lie.
Adv Mpofu: Yeah. Yeah. And then they said, in particular, but without necessarily being exhaustive on the issue, you continuously failed to deliver on the main target of two-year and older cases. You have also failed to demonstrate an effective ability to adequately manage your direct subordinates, and show the timeous delivery of quality work. Your compliance with rules and procedures in the organisation is persistently problematic. You understand that? You disagree with it, it's a lie, and so on, but you understand it?
Ms Baloyi: I don't understand it, because I don't even know what is persistently problematic. As I said whatever is contained in this letter, it's something that they didn't even do even within their own policy. If somebody at my level deals with issues of performance and discipline, they had all the rights to communicate such. And say that 'you have also failed to demonstrate an effective ability to manage your direct subordinates'. Which subordinates are you referring to? For me, this kind of a matter you needed to state, you don't write such a vague letter, when you deal with matters of discipline. A person needs to know, at the end of the day, what is it that you are referring to. You can see these are vague statements that ultimately suited the occasion.
Adv Mpofu: Okay. Then they said, it is apparent that you do not apply the necessary tact, discretion and adaptability, in respect of the disclosure of confidential information obtained during the execution of your duties and functions and when communicating with staff members. In other words, they were saying you don't obey the confidentiality regime within the Public Protector, or you have breached it, correct? That's what they were saying, you don't agree with it, but you understand that's what they were saying? Correct?
Ms Baloyi: Yeah, they've stated it and I still maintain that I don't believe it. It was to suit the occasion.
Adv Mpofu: Yes. While we're on this question of confidentiality, when you went to court, you disclosed some information to the Mail & Guardian, correct?
Ms Baloyi: Which Mail & Guardian, which issue did I disclose to the Mail & Guardian?
Adv Mpofu: The Mail & Guardian. Your court papers.
Ms Baloyi: I, disclosing to the Mail & Guardian to who? Because I was represented by a firm of attorneys, I don't even know. But let me put it to you, Adv Mpofu, that particular office had also a tendency to leak certain information to the public. So if you say that I've leaked the information to the Mail & Guardian, I'll be very much interested to be provided with proof.
Adv Mpofu: I see. So you're suggesting that it was Office of the Public Protector that leaked your court papers to the Mail & Guardian?
Ms Baloyi: Probably, I don't know, because they had those documents. Why should it be me leaking the issues that has got something to do with my reputation, for whose benefit? It was the Public Protector herself that went on the news and said that I was a spy in that particular office because I was sabotaging her. So what could that have served me in terms of taking the letter to the Mail & Guardian?
Adv Mpofu: Anyway, your response is, 2341, where you then ask for... you're saying that the deadline that you were given was unreasonable. You asked for an extension? Correct?
Ms Baloyi: Correct.
Adv Mpofu: And then the response was at 2345, where Mr Mahlangu gave you an extension up to Tuesday 15 October? The following week, correct?
Ms Baloyi: Correct.
Adv Mpofu: Then you finally did your representations that was submitted on 15 October, correct?
Ms Baloyi: Correct.
Adv Mpofu: And in those representations you did not say anything about being purged. Right?
Ms Baloyi: It was obvious. It was not necessary for me to do that because in my discussion during the handing over of the first letter, Mr Mahlangu disclosed it to me. It was in the presence of Mr Gumbi. For me, it was not necessary to disclose it.
Adv Mpofu: So is that a no? In that letter, you did not say anything about being purged?
Ms Baloyi: Yes, because I was not asked to respond to purging. I was asked to respond to issues related to my confirmation of appointment. And I had to respond to those paragraphs.
Adv Mpofu: Yes, that's what I'm saying. So you then took the letter at face value, and you responded to the merits of what you were being accused of? You did not say no, I'm not going to respond to this, because this is all just, I can't remember the word you used, this is just to suit the occasion. This is not the real issue. You responded to those issues that were raised, correct?
Adv Bawa: Yes, I responded.
Adv Mpofu: And the response that came... at that point, therefore, you did not think you were being purged, you just thought that they were using… they were wrong on the allegations that they were making, correct?
Ms Baloyi: There were a lot of things that were not right, so yeah, that's the issue.
Adv Mpofu: Yes. Then the next letter was at 2350. In that letter, it was said that your representations have been considered and the decision has been taken. Then it was said that the PPSA is of the view that you are not suitable. Go further down, paragraph three. After careful consideration and the objective assessment of your performance, the PPSA is of the view that you are not suitable for the role of the Chief Operating Officer, taking into account, your overall capability, your skills, performance and general conduct in relation to the position. So that was the gist of why you were not being confirmed, correct?
Ms Baloyi: I don't know, this was one of those statements that ultimately they knew that if they put such, probably if you look at the face of it, they do think that it's within the law.
Adv Mpofu: Yeah, no, I understand. But this letter now for the first time after the communication, up to now it is the first one that talks about non-confirmation of permanent employee employment, in other words, the termination or annulment of the probation, correct?
Ms Baloyi: Yes, this was a letter that I even spoke about, that when you look at it, it's a letter that you need to look at, it does not have ownership. Given the letter that I wrote, I would have expected in terms of norms and standards, that it would have read, for instance, in the second paragraph, that this letter serves to confirm that I have considered your representation, and therefore, the institution has taken such a decision. If you look at this letter, there is no ownership in terms of the person that responded. Then you ask yourself, where on earth have you seen this kind of the letter in a public institution?
Adv Mpofu: You did not understand that the CEO was acting on behalf of PPSA. He said, he did not "believe it"?
Ms Baloyi: He did not believe it and that he communicated to me when I was with Mr Gumbi. That's why he wrote it like this, which shocked me that you write such a letter as an accounting officer. You know, when you write it with authority, you write your responsibilities, you write what you have considered, but it doesn't have even that I have considered 1,2, 3 and 4. He had to give me such a letter. When you look at it, it tells a story, Adv Mpofu, it tells a big story.
Adv Mpofu: Well, maybe I'm missing the story, I'm saying that the letter is clearly written on behalf of PPSA. Is that not good enough for you?
Ms Baloyi: When I was appointed, the letter was not coming from the PPSA. It was coming from an individual with delegated authority. It does not even talk about when I signed a performance agreement. You ultimately understand when you read the content, that there's an individual that wrote that letter – but this is a statement coming from such an institution.
Adv Mpofu: But it comes from an individual, called Mr Vussy Mahlangu.
Ms Baloyi: I'm saying when you talk about such things, you are not talking about an institution. If were to benchmark this letter with other government departments you wouldn't find even in the worse performing institutions, whether it is a public institution, you will never find such a letter, you will never find such a letter.
Adv Mpofu: Okay. Now, then the next letter was 2352. This one says again your representations have been considered and so on. The only difference is that at the end of that letter, there is a handwritten inscription, correct?
Ms Baloyi: Yes.
Adv Mpofu: And a new paragraph 11. Correct?
Ms Baloyi: Correct.
Adv Mpofu: Signed by the Public Protector. Correct?
Ms Baloyi: Which one are you talking about? Where you say…
Adv Mpofu: Next to the numerical number 11. There's a signature of the Public Protector, correct?
Ms Baloyi: Correct.
Adv Mpofu: Yes. This is now where you say you left Mr Mahlangu's office, you bumped into the Public Protector, correct? And she obviously did not know what you had been discussing. She was actually surprised, correct?
Ms Baloyi: She acted surprised.
Adv Mpofu: Well, evidence will be that she was indeed surprised. She's not. She doesn't have the ability to see what you and Mr Mahlangu had been discussing. So she was... you explained what had happened. She was surprised.
Ms Baloyi: I do not agree with you. And let's agree that we've got a different view on this one.
Adv Mpofu: No, we do, I'm putting it to you that she was surprised. You are saying she was faking it. So we obviously don't agree.
Ms Baloyi: There is a letter that she wrote to my attorneys of record, if you can go through that letter
Adv Mpofu: No, no, no. We'll get to that.
Ms Baloyi: I do not agree because if she was not aware, she wouldn't have written that letter. There are other things that for me, they're not necessary to talk about. But I can tell you that I've never seen it in any other institution that you can dismiss a person at my level and nobody knows and for such a crucial function, advocate.
Adv Mpofu: So you're... Yes. She says she was surprised. You're saying she was faking the surprise. That's the situation?
Ms Baloyi: Yes, she knew that was going to happen. I mean, when you say that she was surprised about my discussions with Mr Mahlangu, well, I can tell you where I work, there's no way that I can dismiss someone without the executive authority knowing and the accounting officer. Here we are talking about a COO that is about to be terminated and the Public Protector does not know.
Adv Mpofu: Okay.
Ms Baloyi: I mean, really, in our own houses, when you want to terminate a helper, your children will also know that tomorrow you'll have to make your lunchboxes prepare everything for your school and make sure that all is in order, because tomorrow Sisi won't be here. I'm saying that you want to tell me that she didn't know that my employment was going to be terminated on that particular day. And at that particular time.
Adv Mpofu: I'm not telling you anything, I'm saying that according to you, you're saying that she faked surprise. In that process of faking surprise, she even went as far as to put this handwritten... you asked her whether you would have an opportunity to appeal, correct?
Ms Baloyi: I didn't, I actually didn't ask her. I said to her, she didn't even have the decency of discussing with me the issues that Mahlangu was talking about. And as I stated earlier, that we didn't even exchange… I was not even given the letter. But there was a discussion and Mr Tyelele was there. So it was known what was happening. The other challenge when I spoke to her was, why do you want to chase me like a thief out the building to say that I must leave now as if there is something at stake. But I put it to you, Adv Mpofu, it's unprecedented in a public institution, in any other institution, if really you mean business about leadership and a culture in an organisation that with the executive authority in this instance, the PP did not know that I was leaving on that particular day.
Adv Mpofu: I see. So you're saying she might have been surprised by the fact that you had to leave immediately?
Ms Baloyi: I don't know. I remember when I entered into Mr Mahlangu's office. When I started to ask him questions, I can tell you the culture in there, the way in which w do things, there was no way that such a matter wouldn't have been known to the Public Protector.
Adv Mpofu: Okay. Then, so she added the following. Once you explained what was happening, she actually came to your assistance and added, should you wish to appeal this decision or make representation, in respect of this letter, you can to do so directly to the Public Protector within five days of the date of this letter. That's what she did. That was the action she took, once you have, as you put it, confronted her. Correct?
Ms Baloyi: Yes, which ordinarily wouldn't have been done.
Adv Mpofu: Yes. In fact, it was she was just extending a privilege to you, correct?
Ms Baloyi: Is it a privilege? Something that is actually in your policy?
Adv Mpofu: Well, in which policy does it say that you have an appeal in five days?
Ms Baloyi: You can look at what the disciplinary policy is all about. Here, it's not talking about performance. The non-confirmation of my probation speaks to issues of discipline and probation. You can look at both documents, and you can also look into the code of good practice. I mean, like, she didn't have to do it. Anyway. I'm not saying that she should have done it, anyway.
Adv Mpofu: I'm saying it was a privilege, ma'am. I'm saying she was extending a privilege, it was not something that was prescribed.
Ms Baloyi: I don't agree with you.
Adv Mpofu: It was prescribed where?
Ms Baloyi: That's what I'm saying, go to the disciplinary policy.
Adv Mpofu: Yes, I've got it under probation policy, it says you have an appeal for five days, that what you're saying?
Ms Baloyi: I'm not saying that. But what I'm saying is, I've never heard of such if it's a privilege, and she did not believe in it. It's very interesting. If you want to call it a privilege, let's just, we can move on. We can call it a privilege.
Adv Mpofu: Okay, thank you, ma'am. Now, so this person, who then extends this privilege to you, you turned it down, basically. You did not want to exercise that privilege, or right, as you call it, whichever one it is, correct?
Ms Baloyi: After consultation with my lawyers, if you remember quite well, the letter which was responding to this particular matter was coming from my attorneys. It was after we looked at all the documents that it will be just a waste of time. No, it's a foregone conclusion that, you know, either way, and that was also informed by the letter that she wrote to my attorneys.
Adv Mpofu: No, she did not write a letter to your attorneys. First, your attorneys wrote to her, correct?
Ms Baloyi: I can't remember, but it was also based on the content of her letter, and the contents of…but at the end of the day, after consideration of all the documents, I was advised ultimately not to respond to that.
Adv Mpofu: Yes, no, yeah, you can be advised but you're the one who gives instructions to what the attorneys must do after they've advised you. So you instructed them that you did not want to take advantage of the opportunity to appeal. Correct?
Ms Baloyi: No, you are not correct. I'm saying that it was, it's not me. Even in our situation today you do what is best in the interest of Adv Mkhwebane, and that's what my lawyers did. It was in the best interest of my wellbeing and that I don't even consider responding to that.
Adv Mpofu: Well, what was the reason that you gave them for not enjoying that right or privilege of the appeal?
Ms Baloyi: I'm stating to you that we considered that matter. You know that document issue. And from I mean, like from that point and the circumstances after that. But if you do that you want somebody to appeal. Tomorrow you go out and make a media statement. Why? I mean, like, what makes you believe that that person that has even gone to the media will consider that objectively at face value, it was just a waste of time.
Adv Mpofu: I see. Well, okay. Your attorneys said you had told them not to, that you will not be appealing because you said the CEO lacked authority. Is that a fact?
Ms Baloyi: It was a fact, because at the time, when you look into the minutes of one of our executive meetings, it was clearly stated in those minutes that the delegations of authority have not been approved, so he didn't have authority.
Adv Mpofu: So that's why you told them that you won't appeal?
Ms Baloyi: It was not only that, it was because of other matters, which I don't even believe… that they are unnecessary for this particular committee.
Adv Mpofu: Do you agree that the only reason as given by your attorneys was that you had told them that you will not be appealing or making any representations, because the CEO lacked authority? Ma'am
Ms Baloyi: Yes, I agree with what is in that letter. Yes.
Adv Mpofu: The Public Protector then responded and made it clear that on the day of the decision completed by the CEO, you engaged her verbally and indicated that you wished to be afforded an opportunity to appeal and make certain representations. And she acceded to this, even though there was no legal or factual obligation to do so. Do you remember that?
Ms Baloyi: I remember that.
Adv Mpofu: And they then said it was regrettable that you have reneged on your own request in that regard, and instructed them not to exercise that appeal? Correct?
Ms Baloyi: Correct.
Adv Mpofu: And then from there, you went to court, and it was discovered you then… the High Court found that you did not have jurisdiction. And later on the Constitutional Court find found that the matter should be remitted back to the High Court? Correct?
Ms Baloyi: Correct.
Adv Mpofu: Right. Now one of the issues that you raise, we don't have time to deal with all the issues that you've raised of the so-called what you call the constitutional issues. But it was only… so your lawyers when they wrote a letter to the Public Protector, they also did not say that you had been purged, they only raised the issue of authority, correct?
Ms Baloyi: You mean that in all the letters there was never the word 'purged'?
Adv Mpofu: No. It's not about words, ma'am. I'm saying in your letters that you had been writing. We've already established that you did not claim that there was something untoward, an ulterior motive. And I'm saying that in the letter from your attorneys, also, that was not stated. In other words, you did not confirm, they did not put as a reason why they were not appealing, for example, the issue of purging, it was not raised there, it was only the question of authority, correct?
Ms Baloyi: Adv Mpofu, as I stated, the merits of this case were never even heard. So I am not sure whether we're still going to raise it later on when the merits of the case have been dealt with. So that's what I was asking, whether you're talking about the word 'purged' or whatever. But they know what purging was; they know that I was actually purged. That's what I was saying that the merits of the case have not been dealt with. And at the moment, I don't think we should be talking about how they viewed this particular matter.
Adv Mpofu: No, ma'am. I think you don't understand me. I'm saying, according to you, these shenanigans, alleged shenanigans started in about April 2019. Correct?
Ms Baloyi: What do you mean by shenanigans?
Adv Mpofu: I mean, when you said, in 2019 you told Mr Mahlangu not to get involved in the Nkwinti matter and all that. That's when you had a disagreement? Correct?
Ms Baloyi: Yeah, I think probably I'll say disagreements not really shenanigans, because I never put that word.
Adv Mpofu: Yes. Okay. Let's call them disagreements. These disagreements started around April 2019. Correct?
Ms Baloyi: Yeah, they started showing around 2019, although there had been dribs and drabs, there, you know.
Adv Mpofu: And they continued up to July, the Dashboard meeting in July, correct?
Ms Baloyi: Not ‘until’, you know…
Adv Mpofu; Not ‘until’, ‘up to’.
Ms Baloyi: Even 'up to'. On 31 July, in particular, that's where most of the issues were raised in a Dashboard meeting.
Adv Mpofu: I'm saying, and then in October, there's this process of confirmation, non-confirmation. Then your lawyers write the letter, dated 28 October, this is now the end of October. I'm saying in all that time up to the end of October, nobody has raised the issue of you being purged, not you and not your lawyers, correct?
Ms Baloyi: I wouldn't understand why my lawyers would actually write about purging in September, because they dealt with the matter after I've been terminated. They wouldn't know what is happening internally.
Adv Mpofu: Yes, but your lawyers, they don't know anything, except if they're told by you. So I'm not blaming your lawyers, I'm blaming you. I'm saying up to that time until the end of October, there was no mention by you or your lawyers, of purging. That's just a fact.
Ms Baloyi: The merits of this case have not been heard, therefore, I cannot actually deal with those issues now. Maybe they will still be ventilated in court, if we go to court. So I do not understand because, as I stated earlier, the merits of this particular case have not been dealt with appropriately.
Adv Mpofu: No, but the merits were raised in your affidavit, where were they not?
Ms Baloyi: But I do not understand, because now you're asking me about the matters that I've been wisely advised by my attorneys, who are not even here to answer for those issues as to how they came to that conclusion.
Adv Mpofu: No, ma'am. I'm not asking about how anyone came to the conclusion. I'm asking a very, very, very simple question. Up to this time, 28 October 2019. Six months or seven months since this purging process started, according to you. Nobody mentions, purging, ulterior motives, all these stories, the Nkwinti, CR 17, and all that. Nobody, that's all I'm saying is just a fact. It was not mentioned. It was either it was mentioned, or it was not mentioned.
Ms Baloyi: It was not mentioned in those documents, but it was discussed in certain meetings.
Adv Mpofu: Okay, good. Only in November then comes like a bolt out the blue, this affidavit making all these statements about ulterior motives. It's signed by you on 6 November 2019. That that is the first time that this is raised. Correct?
Ms Baloyi: No.
Adv Mpofu: This was raised before with the Public Protector of South Africa or with anyone?
Ms Baloyi: It was known, these issues. Hence, I'm saying that it is very interesting that from the beginning, you said, My, my, my, my, my testimony is irrelevant to this particular case. But as I stated that those people, those issues were not new. Some of the issues were raised in the office, and it was known, but when you go to court, obviously, you're going to write what you believe needs to be heard through the courts. So those issues were not ultimately new to them. I mean, for instance, when I asked one of the questions why, I mean, I'm told about my interpersonal relations and whatever. And I'm told how I handled the Winnie Manyathela case. I said, but I didn't see anything wrong in whatever I did; interpersonal relationships with one person cannot actually build such a huge case to say that in general I've got interpersonal relations with everyone.
Adv Mpofu: Yes. No. What does that got to do with a question I'm asking you? I'm saying that until November, nobody, not you, not your lawyers had raised the allegations of ulterior motives or purging. That's just a fact.
Ms Baloyi: But when you read my documents, I raised the issue around how Mahlangu dealt with the Nkwinti matter, with the Public Protector. So it's not true that some of those issues were not raised.
Adv Mpofu: Yes, that was raised on 6 November. That's what I'm trying to explain to you.
Ms Baloyi: But not there. When you read my issues, the fact that when Mr Mahlangu dealt with the Nkwinti matter, I raised it with the Public Protector.
Adv Mpofu: Ma'am, I'm telling you, I'm talking about the termination of your of your probationary period. I'm saying, until the statement you made on 6 November, signed by you before commissioner of oaths. That issue had not been raised anywhere in these documents or letters. Correct?
Ms Baloyi: Probably it was premature to raise it there.
Adv Mpofu: Good. So that's a yes. Okay, fine. Now one of the issues you raise, you say that one of the so-called unconstitutionality is that the Bosasa/CR 17 matter was rushed. You remember that?
Ms Baloyi: Yes.
Adv Mpofu: And you also say that the rogue unit matter was rushed, correct?
Ms Baloyi: Not really rushed only but there was information that we needed to consider.
Adv Mpofu: No, but your real issue is that these two investigations were rushed. Correct?
Ms Baloyi: Can you please go through the affidavit where I say so?
Adv Mpofu: Your affidavit? Yes. Well, you say it in the affidavit here, but you also say it in the affidavit in court, do you... are you disputing that?
Chairperson: Before we proceed, Adv Mpofu. It's now quarter-past five, I would want you to wrap up, please.
Adv Mpofu: Yeah, no, Chair. I'm not... I'm far from finishing now. Because the…
Chairperson: …time, the time. The time set was five o'clock. It’s quarter-past five now. I'd like you by half-past to wrap up, please.
Adv Mpofu: Then this witness will just have to come back. Okay, go to page 2573, ma'am. Paragraph 20. Was it just an example… that the investigations were rushed? Oh, sorry, not there. Investigations were rushed and the preparation of reports itself was also rushed. You remember saying that?
Ms Baloyi: I'm saying, Adv Mpofu, can I see where I say that?
Adv Mpofu: I think what's-his-name can help us, Tshepo, can help us. Do you see the part “investigations were rushed”?
Ms Baloyi: On this paragraph?
Adv Mpofu: Yes.
Ms Baloyi: I don’t see that part here on this paragraph.
Adv Mpofu: Eish. Ma’am, is it your view that the Bosasa matter was rushed or not?
Ms Baloyi: It is my view that it was actually you know rushed.
Adv Mpofu: So what are we debating then? Okay, now on the basis of the view that that investigation was rushed, and you base that on the fact that you are saying that an investigation like that should take about two years. That's what you said, correct?
Ms Baloyi: Where do I talk about IPID here, about taking two years?
Adv Mpofu: [sighs] Did you say... okay, okay, it was rushed. How long was it supposed to take, the Bosasa investigation? Can you go to page 2173, please, operator? Yes, you see that you say, as I've noted earlier, these types of investigations usually take up to two years to finalise. Do you remember that?
Ms Baloyi: Yes, which is commendable to finish it earlier than two years, which was stated during my testimony when Adv Mayosi asked me questions.
Adv Mpofu: Yes, no, but you are not saying it's commendable. You were raising this as what you call unconstitutionality. And you're saying it's suspicious, but it happened earlier, not commendable. It was suspicious, according to you.
Ms Baloyi: Wait, where is this 'suspicious', Adv Mpofu?
Adv Mpofu: Did you regard it to be suspicious? Don't ask me where I am. Just answer the question. Did you regard it as suspicious?
Ms Baloyi: I'm not going to subject myself to that bullying, that you talk to me like that. Unfortunately, [Adv Mpofu: Just answer the question] I’m asking you a question that...
Adv Mpofu: Did you regard it as suspicious, ma'am?
Ms Baloyi: Those are your words. I never said so.
Adv Mpofu: Okay, read the next sentence. However…
Ms Baloyi: This caused suspicions within staff members. I never spoke about myself. I spoke about the entire team.
Adv Mpofu: Including you?
Ms Baloyi: Including Mahlangu, including Ms Motsitsi, including Ms Mogaladi, including Madiba when he... [Adv Mpofu speaking over, both inaudible] so it was not a matter that for instance, it's about me, but it was about the discussions that we had in the office.
Adv Mpofu: Yes, ma’am. Those people, they included you, Ms Baloyi.
Ms Baloyi: What do you mean, when you say they included me?
Adv Mpofu: You've just told us about the number of people who harboured those suspicions. I'm saying those people they included you.
Ms Baloyi: What do you mean they included me?
Adv Mpofu: Which part don’t you understand? The word ‘include’ or the word ‘me’?
Ms Baloyi: Both.
Adv Mpofu: Do they include you? Or they did not include you? Include means you are one of those people, if you don't know. Were you one of the people who harboured suspicions?
Ms Baloyi: If it was me, actually, I would have stated it there; but I've given you an example of how you know we dealt with this particular matter. So it's a matter that I said to you earlier, that if this matter had an opportunity to be ventilated in court, with regards to the merits of it, I should be able to raise those patterns, those issues. So here, it does not talk about raise suspicions for me, but it talks about these caused suspicions within staff members.
Adv Mpofu: I see. So you are basically just refusing to answer the question, okay. Then the next issue was the message to you, which said that, "I worked with few people to deal with the sabotage of the PG camp". And you're saying that you are worried about, "It's not about you, but one has to play the chess" – is that what worried you now? Not all the other members of the team?
Ms Baloyi: No, when you, I don't understand, when you say the members of the team, whom are you referring to?
Adv Mpofu: No, I'm not referring... I'm referring to you. I'm saying the... what worried you was the issue that, "It's not about you, but one has to play the chess", that worried you, Ms Baloyi.
Ms Baloyi: The whole message worried me, it's not about the latter part. You know, when you talk about the Pravin camp, which is the Pravin camp when we are dealing with a matter of constitutionality? So you are supposed to be looking at the merits and the facts and the evidence before you, you don't need to deal with the sabotage of camps. Regardless, when you do an investigation, whether it's in labour relations at work, whether it's in a medical setting, where you investigate death, or you do any, or, somebody slipped in a shop, obviously, you won't deal with a camp, you deal with the merits of the case and the evidence before you.
Adv Mpofu: So you must not... if people are trying to sabotage you or spreading lies about you to that investigation, which might jeopardise the investigation, you must not be concerned about that?
Ms Baloyi: That's why when you do an investigation, I mean, like whether you decide whether you want to be partial, whether you want to deal with the matter the way other people view you, or you want to emerge as a professional and do what is required of you without looking at secondary issues. Obviously, there's nobody that can be happy when they are investigated in any way. But at the end of the day, do you want to focus on those secondary issues? Or you want to focus on the matter at hand?
Adv Mpofu: Does it matter if someone is trying to sabotage your investigation?
Ms Baloyi: I'm not aware, I wouldn't see unless… if I'm not privy to that information that maybe there's sabotage, whether it's coming from the camp, or it's coming from Pravin. I'm not privy to that sabotage information.
Adv Mpofu: Okay. We'll come back to that. Your big issue with the Bosasa investigation, you were you were saying that you wanted the Public Protector to investigate donations by Mr Watson to the NDZ campaign? Correct?
Ms Baloyi: Correct. I didn't say I wanted that investigation. I never said so. I said that it should have been mentioned in that particular report, which has been excluded.
Adv Mpofu: Yes. But you encouraged that the investigation must be extended to include the NDZ campaign.
Ms Baloyi: Can I get to get sight of where I said that?
Adv Mpofu: Oh, no, you can't. I'm asking you whether you made a suggestion that the investigation should be extended to include the NDZ campaign. Yes, or no?
Ms Baloyi: Adv Mpofu, I made a submission on this matter in writing in a memorandum, which the Public Protector had, and it doesn't have that content. I think if you can get sight of that memorandum, then you will read what my concerns were, and what my proposals were. So it wasn't about investigating the NDZ campaign. I've made it very clear on the issues that were omitted in that report that was in front of me. I was very professional in it, and I put them in writing so it was not a matter that was only expressed verbally, or in court documents; there was a memo prepared in that regard.
Adv Mpofu: Did anybody suggest that the investigation must be extended to include the NDZ campaign, including yourself or excluding yourself?
Ms Baloyi: When this matter came up, it was based on the Mail & Guardian Constitutional Court judgment that the Public Protector cannot ignore evidence that she comes across when investigating matters. That's when you know the issues of saying that we can mention it. If you remember, I remember vividly that Madiba stated that it would even help in terms of dealing with a Bill around donations for political parties. So there was no malicious intentions around that. Those, I made a submission in that regard relating to that particular meeting.
Adv Mpofu: Ms Baloyi, please listen to the question, madam. I'm saying to you, did you encourage the investigator to extend the Cyril Ramaphosa CR 17/Bosasa investigation to include the NDZ campaign… to include those issues?
Ms Baloyi: Which investigator are you talking about?
Adv Mpofu: I don't know who the investigator was. I’m saying, did you encourage the investigator in that matter, the chief investigator to extend the investigation to include NDZ? Yes or no? I mean, it’s such a simple question.
Ms Baloyi: Why would I? Why would I actually instruct an investigator when I've done my submission in writing on the matter?
Adv Mpofu: I didn't say…
Ms Baloyi: …because he also had sight.
Adv Mpofu: I'm saying, did you encourage him or her to do so? Yes or no, madam?
Ms Baloyi: For me, it's what I'm saying is, I had a discussion with colleagues like…
Adv Mpofu: Chairperson, can you please just ask the witness to answer the question, please? Did you or did you not encourage the investigator to extend investigation to include the NDZ campaign, ma’am?
Ms Baloyi: That's what I'm asking you, Adv Mpofu. Where did you get that information? And if I've done that, it would be in writing on such a matter, given the statement that was made by Mr [Oupa] Segalwe. If, really, there was a matter on that. That's what I'm saying. If I've stated it in my affidavit, show me where I stated it.
Adv Mpofu: Let's leave the affidavit for now. Did you, Ms Baloyi, Ms Basani Baloyi, yourself, did you encourage the investigator to include the NDZ campaign to extend it? Yes or no? Forget about an…
Ms Baloyi: Why would I encourage an investigator that didn't want me to make input into his report, when it was stated that I should not get involved in that particular matter. I must leave him or her alone, or what have you. Would you under normal circumstances advise someone who has already reported you to your seniors that you'd like to interfere with such. Hence, I stated that my contributions were made in writing. Why would I actually do that? Because it would be that I'm actually interfering with his work, as it was alleged. So I wouldn't do that. You know, I mean, like, whatever that I did on this matter if I recall, well, Adv Mpofu, I put it in writing.
Adv Mpofu: Okay, so you deny that okay, that's fine. Now…
Ms Baloyi: I'm not actually. That's what I'm even asking you, who was the investigator that you're talking about? Because clearly what the... even on that WhatsApp message the Public Protector says that she has worked with 'other people'. So I'm not sure which investigator you're talking about.
Adv Mpofu: All right. Okay. You can; then maybe you can assist us. This is what you said. Let's go to 2172, which is the opposite of what you're saying now. Another lie, another misrepresentation, another statement which you are seeking to disown. Paragraph 60, on page 2172, please. Okay, you say, "In light of these revelations", that is the revelations that Mr Watson had also given money to the NDZ campaign, "Ms Mogaladi and I", that means you Ms Baloyi, "encouraged the chief investigator to consider extending the scope of his investigation to include these allegations, or to limit the investigation to the R500 000 and to request the NPA to investigate the other allegations." Did that happen?
Ms Baloyi: I don't see that statement that you’re talking about to extend the investigation to the NDZ campaign, it's not there, in that statement?
Adv Mpofu: No, I said, did... Okay. Which extend or extending, means the same thing. Correct? Says Ms Mogaladi and I encouraged the chief investigator to consider extending the scope of his investigation to include these allegations. Which parts don't you see?
Ms Baloyi: I don't see NDZ. When you go to the previous paragraph of my affidavit, I stated that it's not talking about the NDZ campaign, he also spoke about donating to other political parties. So when you say that I encouraged him or her or them to consider the scope to include entities, that is not in my paragraph 16, Adv Mpofu. That's what I'm talking to you about. And my paragraph seems to emanate from that last statement. So it's not talking only about the NDZ campaign, he also spoke about funding other political parties.
Adv Mpofu: Yes. Okay. Ma’am, you're just lying to us again, through your teeth. At paragraph 59, you say Mr Watson told the Public Protector that he donated not only to the CR 17 campaign, but also to the NDZ campaign. That’s you, not me. Okay, ma’am?
Ms Baloyi: Continue and read the statement and read the latter part.
Adv Mpofu: Yeah, we will continue, Madam. I’m just asking you whether did you say that Mr Watson told the Public Protector that he donated not only to the CR17, but also to the NDZ campaign?
Ms Baloyi: Correctly. That's what he said in the recording on that meeting, that's what he said. And I think if my colleagues come in here, who were present in that meeting, they'll confirm that.
Adv Mpofu: Yes. Then you say the Public Protector refused to investigate allegations about donations to the NDZ campaign. Did you say that?
Ms Baloyi: Yes.
Adv Mpofu: Yes. Despite the fact that Mr Watson indicated that there are many donors who fund political parties. Then you say, in light of the revelations by Mr Watson, okay, Ms Mogaladi and I encouraged the chief investigator to consider extending the scope of the investigation to include these allegations. Which part is not true, is not clear to you there?
Ms Baloyi: There is no part that is not clear in here. What I'm saying to you is you are talking about the NDZ campaign. It was a time that, as a collective, we believed that this will actually assist Parliament in terms of dealing with that particular [Political Party Funding ] Bill. We are also basing it on that Constitutional Court judgment. So it wasn't something amiss, because we were saying that she was not, obviously at the time, the reason why that could not be investigated was because Nkosazana Dlamini-Zuma as a person was not a member of Cabinet. Therefore that would be relevant, but we're talking about the information that was at our disposal regarding these matters. So it wasn't a challenge to say that we encouraged him to extend the scope to investigate, as you see in my paragraph 60. It was talking about these allegations that were stated in a meeting and it's on record. It's in the minutes and it's actually, there is an audio recording of this meeting and these allegations.
Adv Mpofu: Okay, ma’am, [Chairperson: Adv Mpofu] you are the most untruthful witness that has graced this Committee [Chairperson: Please wrap up] Chairperson, I need, I still have some ground to cover. As you can see the witness is goes around and round and round in circles, but also there have been undue delays caused by unnecessary interruptions. So I need... there's quite a bit... it's obvious that what we are dealing with here, but I still need to cover some of the issues. I never thought anybody could be worse than Mr. Samuel. But here we are. No, I'm saying, Mr Chair, [Chairperson: yes, please, then wrap up] Thank you, Chair. I’ll try. But let me try, because as I say, I don't think really, it's, I think the point has been made. So ma'am. Once again, you are lying to the Committee. Once again, you are twisting the words. And once again, you are denying your own words. I don't know for how many times now. As I say, you have earned yourself the title of the worst witness we have seen so far. So you, which is it? Is the truth that you did not encourage the chief investigator to extend the scope of the investigation, as you said earlier? Or is the truth what is in your statement? Which one is the truth? Which one is the lie? Those two cannot sit together.
Ms Baloyi: I'm not going to respond to that question. You have already labelled me a liar. Why would we seek more lies about the same matter from the same person? I'm not going to respond to that.
Adv Mpofu: Chairperson, can you ask the witness to please respond to my question? Which one is the truth, ma’am? Between you encouraging the chief investigator to extend, as stated in paragraph 60, under oath? Or you saying to the Committee earlier, a few minutes ago, under oath as well, that you would not do such a thing? Which one is the truth?
Ms Baloyi: That is an affidavit of which I know, paragraph 59 and 60, they are as they are. That's what they mean about what is in paragraph 59 and 60, it's what it is.
Adv Mpofu: Is it the truth?
Ms Baloyi: I'm not going to respond to that. All I'm saying to you is that if somebody deposed an affidavit, it's what it is. It's paragraph 59 and 60. That's the truth that is there. Whatever you interpret and whatever you label me, it's, it's, I cannot actually do anything about that. But what I'm telling you is 59 and 60. It's what it is.
Adv Mpofu: Yes, ma'am. Okay, let's do it slowly. When you were doing 59 and 60, did you, as you did this morning, swear to God and say, so help me God, nothing but the truth?
Ms Baloyi: You can ask my attorneys on that matter, because that was an affidavit that was filed in the High Court. So I think that we are not in court here. So I think my attorneys are best positioned to respond to that.
Adv Mpofu: Yes, no, we're not in court. So it's not the same thing. But there's only one God. So did you swear to God, that it was the truth, on that occasion?
Ms Baloyi: I'm a member of the Evangelical Presbyterian Church in South Africa, and I believe in God, but whatever you are looking for in paragraph 59, and 60, those contents are correct, for me.
Adv Mpofu: And they are the truth? So help you God.
Ms Baloyi: You can interpret it in that manner. But all I'm telling you is that I am still stating that paragraph 59 and 60, those are the contents. If you require those details, you can speak to my attorneys of record. Thank you.
Adv Mpofu: No, your attorneys did not actually, they did not attest to the affidavit. Let's go to…
Chairperson: That will be your last point for the day, Adv Mpofu. Wrap up.
Adv Mpofu: Yeah, no, Chair. I have to wrap up this point because it's important. If you go to page 2160. Do you know about perjury, remember, you know the crime of perjury?
Ms Baloyi: I'm listening.
Adv Mpofu: No, I know you're listening. But are you hearing? Do you know about the crime of perjury? If you don't know, I'll tell you what it is. It is lying under oath in connection with legal proceedings and also the one that Ms Ebrahim told you about this morning, is also perjury. Do you understand that?
Ms Baloyi: Yeah, you can do, I mean it. I mean, like the position that we are in now, if I was actually defending Adv Mkhwebane, I will still say it. So that is your own conclusion. You can say whatever you want to say, but in paragraph 59 and 60 as it is, I still stand by those issues, and I am not even going to wink about it.
Adv Mpofu: Yes, no, I don't think you can wink. But hopefully you can sleep at night. But you… so you don't know about perjury. Paragraph two says the contents of this affidavit are true and correct and within my personal knowledge, unless the context indicates otherwise. Then at the last page, you swear that this was the truth. Now, let me explain to you, because this is the last point I want to make for now. We'll see when we recall you to finish your cross-examination. The point I'm making, ma’am, is very simple. I'm saying you made this statement, you said it was true, so help me God. This morning, you also swore and you said, so help me God. In that statement, and the statement you've made here, you have made several contradicting statements, which cannot, which are irreconcilable and cannot be in the same boat. Which means one of them is true, the other one is false. You have refused to tell me which one is true, and which one is false; but at least we know that one of them is false. So I'm simply saying that in doing so, under oath, on both occasions, you are committing the crime of perjury. Do you understand? You might not agree, but do you understand what I'm saying to you?
Ms Baloyi: Adv Mpofu. Actually, I’ve come to this Committee to assist them in doing their work. It will be up to them to decide whether my evidence or whatever, and I don't think it's actually your responsibility to make such conclusions. And I'm not going to respond to that question, with due respect.
Adv Mpofu: Okay, then maybe you can respond to this question. Did you, as you said in your statement, encourage the chief investigator to extend the matter to include the NDZ campaign? Or did you, as you said, a few minutes before, not do such a thing, which one is the truth? Surely…
Ms Baloyi: Don’t put words into my mouth. I said that this matter on this particular issue, it's very clear on 59 and 60. To that effect, I even reduced my views and those of the team in writing and signed it off. So there is a record. Whether you want to talk about any NDZ, or you want to talk about other political parties, my paragraph 59 and 60 is very clear, according to me. And I believe that I was well represented by those attorneys. They understood me and understood what that 59 and 60 is all about.
Adv Mpofu: Okay, so if 59 and 60 are true, then what is false is what you said earlier, to the Committee, or vice versa.
Ms Baloyi: It's up to the Committee to assess that; not up to you. I’ll hear it from the Committee. Thank you.
Adv Mpofu: Thank you, Ms Baloyi, I'm not finished with you. I'm going to finish you later and will with the permission of the Chairperson. But I just want to tell you that it is not assisting the Committee to feed it with lies and to tell it untruths one way or the other. It's actually doing a disservice to the Committee, but we'll deal with that when we meet again. Thank you.
Chairperson: Thank you. I now move to Members to interact with the witness. And I will recognise Members who want to raise a few questions with the witness on that.
Committee questions to Ms Basani Baloyi
Ms D Dlakude (ANC): Thank you very much, Hon Chairperson. Good evening, colleagues, the PP and her team, our evidence leaders, and also Ms Baloyi. Good evening. Ms Baloyi, can you please explain to us your relationship with the PP, when you first met her? Am I audible?
Chairperson: Hello, yes, we can hear you now.
Ms Dlakude: Yes, I asked Ms Baloyi to explain to us her relationship with the PP.
Ms Baloyi: When I first met her, it was a very good relationship. You know, we worked very well. That's what I can say when I first met; it was a very good relationship with no doubt. We worked very well.
Ms Dlakude: Then what changed it then?
Ms Baloyi: What changed was, for instance, when we discussed certain matters, where we did not agree upon, and, but what I would like to say that it did not change from good. That the issue is we did not agree on how to deal with certain matters.
Ms Dlakude: Okay, thank you. Then in paragraph five of your affidavit, why do you think you were a barrier to the PP, to the PP pursuing her personal agenda?
Ms Baloyi: Firstly, when I dealt with certain matters for instance, I was not well informed as to what could be the things that I should not do or the things that I should do. For instance, when we dealt with the Mpumalanga matter which was an executive ethics matter, which I discussed with the team, that is, it was all investigators in head office and all the provinces we analysed that report. When I finished that report, Mr Mahlangu came to me and said that the PP is not happy that I have changed around that. Then when I went to the PP and explained that this cannot be an executive ethics matter and she says she agreed, and the report was issued as such. But the challenge that I used to have is these issues were communicated to me in a very strange manner. For instance, when you want to deal with a matter, the communication would ultimately be displayed as if the Public Protector does not trust me. There are issues that I have done, for instance, when it talks about the disclosure of information, I got it as a complaint that I was at a funeral in Diepkloof. I mean, like, it was just said, I was at a funeral. And on that Saturday, I was at the funeral dealing with this particular matter. Then talking about social gatherings, my question was, why doesn't the PP talk to me if she's got issues around those. I spent even my weekends in the office, and I'm not even sure which social gatherings were being referred to.
Ms Dlakude: So okay. What was this personal agenda that the PP was advancing in the Office of the Public Protector?
Ms Baloyi: For me, to deal with matters not consistently – dealing with some reports in terms of our processes, but other reports were not dealt with, or dealt with differently.
Ms Dlakude: Okay, do you think she may have been influenced by external people to pursue certain agendas?
Ms Baloyi: I am not sure if it could have been external people. As I stated earlier when I got to understand that there are complaints about me, then the question that I heard was that it can't be internally because I interacted with colleagues on a daily basis, and I haven't come across such.
Ms Dlakude: Okay, in paragraph seven, you indicate that the PP and the former CEO were driven by ulterior motives in the conduct of investigations. Can you please elaborate more on what these ulterior motives were?
Ms Baloyi: For me, the first one was with Nkwinti, that we had to make a finding against Nkwinti because the Public Protector, in her own words indicated to me that we need to fast track that investigation because its dependent on confirmation of the appointment of Mr Mahlangu.
Ms Dlakude: Okay, considering the allegations you are making, that the PP had an ulterior motive during investigations, did she approach matters with a preconceived and predetermined outcome in her mind, and therefore failed to be impartial in her investigations?
Ms Baloyi: I would put it in this way. That when we looked into the [Ivan] Pillay matter which involved pensions, there was a statement made by the then Commissioner, Mr [Oupa] Magashula, that it was said to be a Cabinet decision to appoint Mr Pillay. I requested the investigator concerned, then it was Njabulo [Mathabela], we met with him with Ms Mogaladi, and explained that, given the fact that there's mention of the Cabinet decision, can you go and get that Cabinet decision throughout through the Cabinet Secretariat, in the Presidency, or through Treasury. The response that we got from the investigator was 'that's a waste of time, we cannot do it, because the Public Protector says we can proceed with this kind of information'. But I said, if there is a Cabinet decision, why can't we actually verify all the information that was there. That is one example. The second example is when we dealt with the case or a complaint against Minister [Thulas] Nxesi. You know, the matter was dealt with by the Public Service Commission, and I recommended that we cannot deal with the matter because the Public Service Commission is dealing with it and it's an employment matter. She insisted that we need to deal with it because it needs to be finalised as an important matter. But with other matters that involved other institutions, where the Public Service Commission is investigating, we wouldn't even investigate such a labour matter. So I couldn't find any reason why we should deal with matters differently.
Ms Dlakude: Okay, my last question, Hon Chairperson. Considering that the CEO is not permitted to be involved in investigations, did you make the PP aware that it is not permitted for the CEO to involve himself in investigations? If so, what was her reaction? If not, why?
Ms Baloyi: With regards to the CEO, I found the institution like, you know, an investigation will be concluded and from an administrative side, I would be dealing with any matter related to that. Then the Public Protector would sign off that investigation report. But in the case in question that you're talking about Mr Mahlangu confronted me about the investigation that involved him. I actually raised it with the Public Protector and her response was, I should do my work and she was aware of the issues that we were encountering in terms of finalising that investigation.
Ms Dlakude: Thank you, Ms Baloyi. Thanks, Hon Chair.
Chairperson: Thank you, Hon Dlakude. Hon Gondwe.
Dr M Gondwe (DA): Thank you, Chair. Dumela, Ma Baloyi, can you hear me?
Ms Baloyi: Yes.
Dr Gondwe: I have a number of questions for you. You state in paragraph nine of your affidavit that when you started with the Office of the Public Protector in 2019, there was a massive backlog of cases older than two years old. Would you attribute this backlog, massive backlog of cases to the period prior to Adv Mkhwebane assuming office in 2016? I'm asking this because we heard evidence from one or two witnesses that appeared before this Committee, to the effect that there was a considerable backlog of cases that could be attributed to Adv Madonsela's tenure as Public Protector.
Ms Baloyi: Thank you, it was a combination of her era and this particular tenure of Adv Mkhwebane, but it started before that some of the cases were more than two years old and these matters were not dealt with accordingly. What was presented during my period, were mostly the matters that should have been done earlier than that, but most were in-between that particular period of office of Adv Mkhwebane.
Dr Gondwe: All right, thank you. How would you describe the management and leadership style of Mr Mahlangu? Would you describe him as Adv Mkhwebane's enforcer? In other words, someone who would act on her instructions, without question?
Ms Baloyi: Yes, he would do that. As I stated earlier, in some instances I would engage him about the approach in terms of dealing with matters. As I stated, at some stage he told me that I need to act on an instruction. But I would say that you don't have information related to this particular matter. Let's engage, let's talk about it. Let me explain my side of the story. Then he will indicate to me that I have to implement this instruction.
Dr Gondwe: So did you get the impression that he was afraid of her, or he was reluctant to go against any instruction that she issued?
Ms Baloyi: Correct.
Dr Gondwe: You mentioned in the course of your cross-examination by Adv Mpofu that you knew that Mr Mahlangu was acting on instructions of the Public Protector when he wrote that letter that eventually led to your dismissal. At some point, you mentioned to this Committee that Mr Mahlangu indicated to you that he was also on his way out. Do you think he was forced to resign from his job as CEO? He informed this Committee that he resigned due to personal reasons, but he wouldn't really go into the details around the reasons for his resignation.
Ms Baloyi: I wouldn't know because he left after I left. But as I stated he mentioned those concerns – not once, at the time, I was with Mr Gumbi, and at some stage I was with Ms Motsitsi – that he is really uncomfortable about the environment.
Dr Gondwe: In his evidence-in-chief, Mr Mahlangu, informed this Committee that you were released from the Office of the Public Protector due to due to performance-related issues. You informed this committee today, in your evidence-in-chief that Mr Mahlangu did not regularly appraise you on your conduct and work performance, despite your fixed-term contract requiring him to do so. Did Mr Mahlangu ever make a comment in passing or informally, about your performance being below expectations? You can go ahead and answer, ma'am.
Ms Baloyi: Thank you. As I stated I was never appraised. Remember that in my performance agreement, we couldn't have used the cases only; there are other KPIs that are related to my area of work. I was never assessed. I've never attended appointment meetings that discuss my performance, either with him or the Deputy Public Protector or the Public Protector.
Dr Gondwe: So my question was, did he not mention anything in passing or informally, that, Ms Baloyi, I'm not happy with your performance?
Ms Baloyi: No, because he wouldn't have pronounced on that because he was not involved in investigations.
Dr Gondwe: Okay. So you were obviously taken by surprise when your appointment was not confirmed. You were ultimately dismissed from the Office of the Public Protector?
Ms Baloyi: Correct.
Dr Gondwe: All right. The letter that the Committee was shown today written to you by Mr Mahlangu, made reference to a number of audi and reprimand letters being sent to you. How many audi and reprimand letters were sent to you? Please confirm if all these letters were sent to you by Mr Mahlangu – who and what are some of them related to?
Ms Baloyi: Yes, the letters were written by Mr Mahlangu, it would refer to matters related to not completing the cases on time, regardless of what I would have explained. I also received an audi, if I recall, around the issue of Ms Mosana. I received another audi about support for the PP; when I came back, I got a letter that I should have submitted those reports, although I had agreed with Mr Mahlangu that I'll give them to him the following day. I can't recall all of them, but I had few of those. What I stated is that they could refer to them. Mostly it was around when we go to the Dashboard meeting, you have not met your targets, then you'll get an audi. Or it was mostly around any other issue that you do, you will just be given an audi.
Dr Gondwe: And please confirm if these audi and reprimand letters in your view were issued via instructions by Adv Mkhwebane, or whether you feel she had knowledge of them.
Ms Baloyi: She had knowledge of them, because when I spoke to him around the issue of Mosana, he indicated to me that my conduct was undermining the authority of the Public Protector, which to my surprise was while they were both out of the country. There was no acting Public Protector, and there was no acting CEO. At the time, I was the most senior that could have explained this whole issue. Taking into account that Ms Mosana was willing to go at that stage, I didn't even ask the Public Protector why the matter was like that, but it was an audi related to the fact that I shouldn't have done it. It caused the institution reputational damage because Ms Mosana has lodged this matter in the CCMA. To date, I think I've been exonerated because of the constructive dismissal matter, it was not caused by me. It was actually part of the contents of Ms Mosana's resignation case which she won at the CCMA, and she also won the appeal of that matter.
Dr Gondwe: Thank you. You mentioned in the course of your evidence-in-chief that you had also issued audi letters to people that were reporting to you, please confirm to this Committee under what circumstances, audi letters will be issued to an employee in the Office of the Public Protector. To your knowledge, what steps would precede the issuing of an audi letter? I'm asking this because we heard from Adv Mkhwebane's counsel, a number of steps preceded the issuing of an audi letter. We also heard that an audi letter was not necessarily a warning letter but given prior to a warning letter.
Ms Baloyi: It was a very difficult environment to work in. For instance, the reports that were older than two years, it did not mean specifically that the executive managers were investigating them. Below that level, the cases were investigated by chief investigators, senior investigators and other investigators. When you look into that way, that's how we got to the conclusion of some of the work that were happening. So you know, when you have not achieved, I've given the audi letters, and the instruction was very clear that you give out those letters, and you must provide proof that you have dealt with them, regardless of the fact that you would have explained what is the challenge. You would have given somebody an audi for not having met the target, and in some instances, you will find that there were reasons around missing that deadline in terms of what one would have received. So yes, I have given those audi letters. I wouldn't understand why we start with the audi rather than dealing with the issue. For me, I was of the view that we needed to apply our mind and look into all the factors that contribute towards that.
Dr Gondwe: So what were the steps preceding the issue of an audi letter? Would there be a verbal warning?
Ms Baloyi: No, there was nothing.
Dr Gondwe: So it was just issued at whim?
Ms Baloyi: Yes, you will get one audi after the other, even if the issues are the same, that naturally when you give an audi and you know, the issues are unrelated, yes. But in some issues is that will be, it will be the audi around the the same matters of not meeting the deadlines of all those cases two years and older.
Dr Gondwe: Thank you. In your affidavit, you make reference to there being a culture of victimisation fear, intimidation, and disrespect under the leadership of Adv Mkhwebane in the Office of the Public Protector. Other than Mr Mahlangu and Adv Mkhwebane, in your opinion, who else in the Office of the Public Protector was also directly responsible for perpetuating this culture of victimisation fear and intimidation?
Ms Baloyi: It was the Chief of Staff.
Dr Gondwe: Please can you state the name of the Chief of Staff?
Ms Baloyi: It is the late Mr Nyembe, he would do that to us.
Dr Gondwe: What exactly would Mr Nyembe do?
Ms Baloyi: You know, he will utter statements, for instance, when we were explaining, for instance, this particular employee could not meet the deadlines, we are helping them. Instead of looking at that he will talk about how much we are earning and why would we come to the meeting having not concluded certain matters and what is it that we actually do on a daily basis when we come to the office. To me, I mean, like it was a matter of stating that, for instance, we are just irresponsible individuals who do not want to work.
Adv Mpofu: Chairperson?
Chairperson: It will be after her last point when I come back to you. Adv Mpofu?
Adv Mpofu: No, Chairperson, I just wanted to register an objection to that kind of question, which is both unfair and irrelevant to what is being investigated there, but also insensitive. Mr Nyembe cannot answer for himself, and he should not be subjected to a witness of this nature who can say anything about him, please. Let's try, let's be respectful to those who have departed.
Chairperson: I've noticed your objection, please. Hon Gondwe, that's your last point.
Dr Gondwe: Yes. Mam Baloyi, Mam Baloyi?
Ms Baloyi: Yes, I can hear you.
Dr Gondwe: I have another question around this culture that was perpetuated of victimisation, fear and intimidation. Was there anybody else outside of the Office of the Public Protector that you felt contributed towards the perpetuation of this culture?
Ms Baloyi: I am not aware of any external influence that was there, because mostly one was seized with doing the work. There could be, but I'm not aware.
Dr Gondwe: Thank you.
Chairperson: Thank you, Hon Gondwe. Hon Mananiso.
Ms J Mananiso (ANC): Thank you, Hon Chair. Greetings to members in the House and as well on the virtual platform. Let me welcome you Ma Baloyi. Okay. You seem to be angry about what happened to you, when your probationary period was not confirmed. I want to check with you, ma'am. Are you here to settle a score with the PP, considering how you were treated?
Ms Baloyi: I'm not angry. I've gone through a lot of things that I have suspected that office is behind what I was subjected to when I left that particular office, and I appreciate being here today. I don't have any scores to settle because when I look into the matters that I have testified on, its issues not only to do with me, but I am doing it to assist the Committee to do its work, number one. Number two, there are people that are sitting in that office who wouldn't like to talk about it. Number three, there are employees that have left that institution. And there are also employees that have died, that today could have lived to tell the truth. I've got no score to settle with Adv Mkhwebane, I've come to terms. As I stated earlier, there is nothing that I can do whatever she did to me. So either way. It's something that I'm doing out of my own will. I hope that after this process, that Office will be different, that it will change the culture that is there and address some of the issues. So I'm not aggrieved, and I don't have a score to settle with her at all.
Ms Mananiso: Okay, thank you, ma'am. Then my second question to you is with regards to the issue of security clearance. People came before us and indicated that some members had the security clearance and for some specific reason Mr Vussy Mahlangu didn't have the security clearance. I want to check with you do you think that the Public Protector was treating Mr Mahlangu differently from any other members?
Ms Baloyi: With regards to the security clearance matter, in terms of Mr Mahlangu? I mean, the first time I heard that he did not have security clearance, it was when I read it in the paper. So I was not aware that he does not have security clearance myself. Because it was a matter that, you know, was in the jurisdiction of the Human Resources unit.
Ms Mananiso: Okay, on paragraph 13 of your affidavit, you indicate that the PP did not provide employees space to do their professional work. Did this have an adverse effect on the morale of the staff in any way?
Ms Baloyi: Yes, because, you know, as I stated, I would give an example that there were employees that we're not happy around how we dealt with certain matters, and created tension. For instance, I'll talked about with certain investigations how we had to deal with Ms Mogaladi, Adv Madiba and Adv Kock around the investigation. So you know, in most instances, you will come across instances where with some employees, the investigation has been moved away from one employee to the next, which also delayed it. When you look into the environment itself, some of the investigators when we address them, for instance, they will say that there must be a clear line – some of these issues that you guys are changing really we are not happy with'. So those are the kinds of issues that we had in that particular office.
Ms Mananiso: Okay, was there anything wrong with the PP involving herself in operational matters? As she is the head of the institution and the executive authority accountable to Parliament for what happens in the organisation. Would you say her involvement in operational matters was a deviation from the standard behaviour expected from an executive authority?
Ms Baloyi: For me, is when you've got an executive authority with such senior officials, there are certain matters that could have been delegated to be dealt with by executive managers, because they're there, and they are doing their work and they're being paid for being at that particular level. But what I can say is, it also depends on your leadership style, what is it that you want to do. And with some matters, I could agree, but with some matters I mean really it was not giving executive managers space to do their work, that you could wholly hold them accountable for that particular failure or that particular non-performance, if you may call it, or for such challenges not being addressed quite well. So at times, we would find ourselves with competing views in terms of resolving those particular matters. Again, it's a matter of choice, even if it's not a political institution, but that level obviously it was supposed to be clear as to what the issues are that needed to be dealt with and the issues that office cannot deal with, they are escalated to that level, yes, they could be dealt with.
Ms Mananiso: Yes. Lastly, Mama Baloyi, my question is with regards to what you have narrated on your affidavit, paragraph 12, when you speak about the leadership style of the PP. I just want to check with you did her style actually affect the OPP negatively?
Ms Baloyi: Yes, it did. I will give you an example. I mean when we wanted to deal with… there was a relationship issue in the Gauteng office as I stated earlier, the issues could have been raised with the executive manager to address them, but the issues were raised with the CEO and with the Public Protector. In that particular space in addressing some of the matters I was excluded in terms of trying to get those kinds of issues addressed, which created tension amongst employees as to who is responsible and for what, and who accounts to whom. In any organisation when you find things like that, they affect morale, because governance structures become an issue in terms of taking accountability. So we would find that in that particular office.
Ms Mananiso: Okay. Chairperson, as I learned now, I just want to add a follow up to the question that I've just asked. Do you think her conduct falls short of the standard expected of a public officer? As I conclude, thank you.
Ms Baloyi: I wouldn't say it in that manner, but I think she could have done better in terms of addressing issues in the Office given its mandate and the fact that we make findings about other executive authorities, other accounting officers and chairpersons of boards in public institutions for the similar issues that are actually happening in that institution.
Chairperson: Thank you, Ms Baloyi. I now recognise Hon Sukers. Hon Marie Sukers?
Ms M Sukers (ACDP): Thank you, Chair. Ms Baloyi, thank you for presenting yourself to this Committee. It is appreciated. I have a few questions for you. I will start with the first one. Are you... Do you know who took the decision to introduce audi letters?
Ms Baloyi: I do not know, I found it there.
Ms Sukers: Can you explain what written directives were given to line managers on how and when to use audi letters? Where can we find those perhaps as a Committee? In other words, was there a formal policy on audi letters?
Ms Baloyi: There wasn't such a policy on audi letters.
Ms Sukers: And was any directive given, a written directive, given to line managers on how and when to use audi letters?
Ms Baloyi: No, there was never such.
Ms Sukers: I understand in your affidavit, I understand your staff out of loyalty asked you to send them audi letters. For example, on 6 August 2019, you send an audi letter to your direct subordinates, these were identical letters, then on 10 October 2019, written warnings were sent to the staff. How then did the audi letters fit into the disciplinary policy and procedures that require a formal verbal warning to be given?
Ms Baloyi: You know, that was another gap because there, there will be instances where you will give those audi letters, so it didn't fit into the disciplinary process as such. In my instance this was related to investigations, and where there were areas of misconduct, which I never had an employee that was supposed to be subject to a disciplinary hearing, I never issued such an audi letter. The audi letters that are issued emanate also from the meetings. You go into the meeting, and a decision is taken that you need to issue those audi letters, and one would have to implement the decision of that governance structure, which is the Dashboard meeting.
Ms Sukers: Are you aware of other government department or private companies where audi letters are used rather than labour procedures?
Ms Baloyi: I am aware that for instance audi letters, yes, they are given where you've got evidence of what the issue is all about. But in our case, from the audi letters that we have given, it was a matter of people have not performed, and it was related to performance management. Again, not really performance as such, but not meeting the deadlines, which ultimately would translate into performance management. Although we knew the circumstances around it, but when we talk about an audi letter, for instance, in a government department, you would give somebody such a letter when we have established all the facts, you are sure what you're talking about, you needed to do that. As I explained earlier in terms of how the audi letters were being issued, when we looked into the matter of Mr Jeff Woods, from that I handed Ms Mogaladi a letter and meanwhile, the issues have not been thought through, they are not known and it's not validated as to what the delays were for such a response.
Ms Sukers: Thank you. As an experienced leader and manager, would you use audi letters as a normal performance review tool?
Ms Baloyi: I wouldn't. I would use it as a last resort towards before I go into disciplinary hearing, when I have established the circumstances around performance.
Ms Sukers: You had a long discussion on target setting today. Should target setting in the context of performance include barriers to performance and evaluation of resources in order to achieve those targets?
Ms Baloyi: Correct.
Ms Sukers: Was this done by the Public Protector when setting targets?
Ms Baloyi: No.
Ms Sukers: Did the failure to include these factors in target setting damage the Public Protector South Africa as an organisation, in your view?
Ms Baloyi: For me, it's not really damaged. But when I spoke to the staff members, it created that uncertainty, anxiety and fear that if you cannot manage this, then ultimately you're going to get an audi, which at the end of the day, you've obviously got unhappy employees. They could not actually do or execute their work under those circumstances. So there was never an opportunity to deal with such matters. But also when I looked into the way the audi was implemented, in some instances, there are people that would lose a case or their case was set aside in court. We didn't have a framework on how do we deal with such cases, and nothing was happening to them. There were people in other provinces like KZN that didn't have reports that were prioritised than the cases in some other areas. It was a matter that some employees will raise, for instance, why our cases are always prioritised for finalisation when others they have time to deal with those particular case.
Ms Sukers: Thank you, you mentioned a project plan that you drew up to deal with the backlog, other than the broad project plan that you drew up, did the PPSA have individual project plans for high profile or large reports, and how was staff leave accommodated in those project plans?
Ms Baloyi: We didn't have a project plan as such for investigations, but what we had was a project plan for cases older than two years. We also had a task register, where with all other cases you actually show the progress on those particular cases. That's how we dealt with the documents that would guide in terms of projectising or classification of cases.
Ms Sukers: Did PPSA use project management software or subsystems like MS Project on those?
Ms Baloyi: No, we didn't have such. It was a normal MS Word and Excel document that was developed by the Customer Services Unit to deal with those matters.
Ms Sukers: Could I ask you, and this is my last question, how many years’ experience do you have at the senior management level?
Ms Baloyi: I've been at senior management level since 2001.
Ms Sukers: May I venture just to ask this last one, which you mentioned very briefly with Hon Mananiso, the impact of everything on yourself and on several of your colleagues. Would you mind telling the Committee, what did this have as an impact on you personally? And what would what would you say, in terms of the impact on your colleagues, when you speak of the different issues that you were confronted with?
Ms Baloyi: To be honest with this Committee, you know, I would have sessions where the three executive managers that reported to me, that is, Ms Mogaladi, Ms Motsitsi, and Ms Thejane, would literally break down in the office and cry.
Ms Sukers: Thank you, Ms Baloyi, appreciate you coming here.
Ms Baloyi: Thank you.
Chairperson: Thank you, Hon Sukers. Hon Mileham.
Mr K Mileham (DA): Thank you, Chairperson. Good evening, Ms Baloyi.
Ms Baloyi: Good evening.
Mr Mileham: Yes. Hello, Ms Baloyi, you stated in paragraph 11 of your affidavit that the PP's way of overseeing investigations was not to hear or listen to the executives and investigators responsible for conducting them. Her chosen method was to threaten, impose, and brook no other views. My question is did the PP subvert or amend the findings of investigations based on her personal opinions, rather than on a factual or legal basis?
Ms Baloyi: I talk about investigations in the sense that, for me, it's when the evidence is before you, you need to deal with that matter in that particular manner. But when we look into how some of the matters have been dealt with, as I stated with Nkwinti, we were supposed to finalise that report and make certain recommendations because someone internally had to benefit out of that particular investigation. Remember it's unprecedented that, you know, you can appoint an employee on a one-year contract for such a level of position without even running a particular process. When you analyse that and what one was subjected to, I came to that conclusion, because one had to remove certain information, because in the first Section 7(9) that was issued, the Deloitte report that I stated earlier implicated Mr Mahlangu was then later removed from that particular angle. For me when you look into what we were doing and what was supposed to be delivered at the end of the day, and given the fact that a matter that is in the Labour Court might be staying there for quite some time, why? If there were good intentions to appoint him, he could have been appointed with a condition based on the outcome of the labour matter, which was known that it was financial mismanagement. I didn't find any reason why you would be appointed on a one-year and again that appointment is dependent on the outcome of the Nkwinti investigation.
Mr Mileham: Ms Baloyi, you say in paragraph 14, the Public Protector's pressure on me and other executives to take disciplinary measures against staff who reported to us, was relentless. Did that take up a lot of time, that could have been better utilised to investigate or draft reports?
Ms Baloyi: It would take time, yes, it would take a lot of time, depending on the complaint that was there. Remember that you need to address the complaints, by the time you finalise the report, you could have dealt with matters appropriately. When we looked into the issues of disciplinary hearing, as I stated, the investigations were not done by the executive managers. If that report was investigated by a junior investigator, it would mean that when I get an audi, it would have to be cascaded down to everyone. So you can you imagine that we ended up with a lot of employees that are aggrieved, people not being focused because of dealing with that matter of an audi. So it will be a ripple effect that I get one of the executive managers to give it to their chief investigator, the chief investigators give written warnings to the senior investigators, and ultimately the junior investigators, because that's where the work emanated from. Yes.
Mr Mileham: Okay. Ms Baloyi, at paragraph 19, you talk about the long hours of work and the constant pressure to put out reports to coincide with media briefings. Then in paragraph 20, you note that this adversely affected the quality of reports, because investigations and the preparation of reports were rushed. Now, my question is, was this the norm? Or did it only occur in exceptional circumstances or with high profile cases?
Ms Baloyi: You know, it coincided with high profile cases. As I stated earlier, there was the FSB case, which on the 24 or 26 March, we got an instruction that it should be one of those, and at that stage not much work has been done on the issue of the Tshwane appointments. In most instances that was a challenge for us as we are dealing with a matter to be to be publicised on this day, regardless of the work that should have been done properly.
Mr Mileham: But it's the high-profile ones that got pushed for attention and the long hours and the like?
Ms Baloyi: Correct.
Mr Mileham: Okay. Who were the investigators on the CR, so the external investigators on the CR17 matter?
Ms Baloyi: I do not know. That information was never divulged to me.
Mr Mileham: In your testimony earlier, you said that when you met with Mr Mahlangu and the Chief of Staff, they resisted your suggestion that the NPA was best placed to investigate the CR 17 money laundering allegations. You further said that during that meeting, you were told that the matter cannot be delegated to the NPA and that the NDPP will not actually deliver the results wanted. Is that correct? Did I understand you correctly?
Ms Baloyi: Correct.
Mr Mileham: Okay, so what were the results that were wanted and who wanted those particular results?
Ms Baloyi: I wasn't sure because when you discuss the matter with your team, and then later on, you find that those matters have been escalated to the CEO. So it was not an engagement, but it was just to inform me how this investigation should be done. I didn't have much to say in that particular meeting, but I was told that I should stop insisting that these matters should be dealt with in any manner.
Mr Mileham: So that brings me to my next question, which is what was Mr Mahlangu's role with regard to investigations?
Ms Baloyi: None.
Mr Mileham: And how often did he get involved in investigations?
Ms Baloyi: When you say involved, he was never even involved in investigations, and he would just read the received reports, in any other in terms than that, or when a particular issue is being dealt with, but he wouldn't actually tell you what some of these matters are all about, except for when we report and we explain what the issues are. But he was not involved in investigations. Specifically, that if he was involved, he would have played a very crucial role in providing input, support and guidance in my work, which never happened.
Mr Mileham: But, I mean, we've heard throughout this inquiry that that he would make inputs into the findings and recommendations and remedial actions of reports, is that not true?
Ms Baloyi: I am not aware, except for when it was one or two cases which are dealt with by one person, as I stated earlier, on two particular cases. When I was asking this particular investigator why did you change the content, he was saying that, no, it was my discussion with the CEO, which was unusual because we never reported to him on the content of the investigation and he never signed any investigation report.
Mr Mileham: So that was out of order. Okay. Was the Public Protector aware of his involvement?
Ms Baloyi: On the cases that, for instance, I was not happy about, I discussed it with her.
Mr Mileham: Okay. I want to come back to the Public Protector's Chief of Staff, Mr Sibusiso Nyembe. What was his role in the organisation?
Ms Baloyi: His role was that of supporting the Public Protector in managing her office. With regards to investigations, I would submit the reports to the Public Protector through him – checked and signed off by the Public Protector. That was his role. He was the actual Chief of Staff managing the administration office of the Public Protector including managing the correspondence related to investigations.
Mr Mileham: Okay. What do you think he meant by the statement, and I quote, "the report will be dealt with in this office, and the PP will emerge as a powerful woman in the country after dealing with this particular matter"?
Ms Baloyi: It was a matter that the…
Adv Mpofu: Chairperson?
Chairperson: Just pause.
Adv Mpofu: Yeah, thank you. No, I wanted to object to the editorialising by Hon Mileham. He says that the witness said something about the most powerful woman in the country. There is no such evidence. Those are his words. The other objection about respecting the departed. I don't think he will understand the issues of Ubuntu. But can you just not put words into the mouth of the witness? Thank you.
Chairperson: Okay, before you, before you respond, thank you, Adv Mpofu. I think Hon Mileham would have referred to matters in the affidavit.
Adv Mpofu: No, I'm not talking about any affidavit. I'm talking about the testimony.
Chairperson: Okay, Hon Mileham.
Mr Mileham: Chairperson, I was quoting what was stated earlier, where Mr Nyembe reportedly said, this report will be dealt with in this office, and the PP will emerge as a powerful woman in the country after dealing with this particular matter. I never used the word "most" powerful. I said, "a" powerful woman. Those were what was testified to earlier. Now, my question is what does Ms Baloyi think Mr Nyembe meant by that statement, what did he mean to convey to her by that statement?
Adv Mpofu: Chairperson, that's fine. Let him continue. I don't think he'll get it. Thanks.
Chairperson: Thank you, Adv Mpofu. Ms Baloyi.
Ms Baloyi: My understanding was that that is a crucial investigation that at the end of the day – he even said when we were talking about it, that the Cabinet could have been collapsed within a short space of time – and that it will be history in the country.
Mr Mileham: And the emergence of the PP as a powerful woman in the country?
Ms Baloyi: Yes, that she would have dealt with an investigation that within a short space of time, that Cabinet could have been collapsed.
Mr Mileham: Okay. My last point and it continues on the same train. I'm going to ask the evidence leaders to put up a tweet of Mr Nyembe's and I'm going to ask you if you think it is appropriate, this tweet has been provided to both the Public Protector and the evidence leaders. Could you put it on the screen, please?
Adv Mpofu: Chairperson? Chairperson?
Chairperson: Adv Mpofu.
Adv Mpofu: Yeah. Again, we object to this abuse of somebody who cannot answer for himself or who cannot, you know. I get also Facebook messages attributed to me, I'm not even on Facebook. There are all sorts of imposters, but I can answer for myself because I'm alive. But this is now abusive and inhumane and even coming from where it comes from, thank you. I just think that for you to allow this, Chairperson, you are being insensitive, both not just to Mr Nyembe, but to his family members. It's not done this, that first of all, Mr Nyembe is, this is not impeachment of Mr Nyembe. There's nothing in the motion that mentioned him. The motion of the former chief whip Mazzone does not mention Mr Nyembe. I'm sure Hon Mileham would know that because he would have looked at the motion. So this is just pure abuse for no gain at all except to be abusive and gratuitous, and inhumane and cruel. But that's…
Mr Mileham: Chair, my question goes. Chairperson, my question goes…
Chairperson: Adv Mpofu, I will watch this space. Hon Mileham.
Mr Mileham: Chairperson, my question goes to the role of Mr Nyembe and the impartiality of the Public Protector, which is a constitutional obligation of that office. It's a bit difficult to read, but it basically says, and this is Sibusiso Nyembe, and his Twitter handle is @sodonkie...
Adv Mpofu: Chairperson, I've made an objection.
Mr Mileham: Chairperson [Adv Mpofu: Chairperson] sorry, I'm being interrupted, Chair. I'd like you to protect me, please.
Adv Mpofu: Okay, I apologise. But can we wait for the ruling of the Chair, please? At least can we pretend that this process is being managed with the dignity and sensitivity that…
Mr Mileham: That's quite rich coming from you, Adv Mpofu.
Chairperson: I did not ask you to do that.
Adv Mpofu: [shouting] Don't do that. Don't do it.
Mr Mileham: I'm not going to take this from Adv Mpofu too.
Adv Mpofu [shouting]: Don't do it, don't do it.
Mr Mileham: It's been weeks of not respecting you, he's been disrespecting members of this Committee. He continues to speak over people when…
Adv Mpofu [shouting]: Shut up. We're talking about, talking about… no. Listen, Mr Mileham. Mr Mileham
Chairperson: Please just pause, Adv Mpofu.
Adv Mpofu: Chairperson? No, I'm not going to be abused by these people.
Chairperson: I'm asking you to pause. I've asked Hon Mileham who's on the platform to switch off his mic. And I'm asking you to stop.
Adv Mpofu: Yeah, I'm stopping to talk. But I'm telling you, I'm not going to be abused by these people. I'm not, I'm not going to be abused by them. This is another era now, this is another thing.
Chairperson: [firmly] I've asked you to stop talking.
Adv Mpofu: No man, Chair. Apologies.
Chairperson: It's not going to help that you get to slug each other on the platform and so on, because we've got to get to the bottom of the issues that brought us to be here. Adv Mpofu, you raised an objection. And your objection is on the basis that the person being referred to is late. Therefore, you're invoking issues of dignity in relation to that; I've listened to that.
Adv Mpofu: And relevance, Chair.
Chairperson: Yes. From this morning, in the affidavit, the name of Mr Nyembe would have been mentioned and reflected. So that's the beginning of the relevance in terms of what we're focusing on here today. You might not like that, and I don't want you to respond to me. So I am going to ask Hon Mileham to complete his question and hear the witness response, how she responds to that. We're not going to be getting into the personal life of Mr Nyembe here. What we're dealing with, we're connecting the dots here about the issues that have been placed in front of us. I will watch that space when it gets into that private space that encroaches on dignity. For now. I am comfortable that we're not in that space, and therefore I'm ruling that Hon Mileham continues with this question.
Mr Mileham: Thank you, Chairperson.
Adv Mpofu: Can I just say something? Excuse me, Mr Mileham. Yes, Chairperson. That's your ruling and I respect it. All I'm saying is that I just want to place on the record that you should know better, that you cannot abuse somebody who cannot answer for themselves about material which is not before this Committee, about material which is not relevant to the impeachment of the Public Protector, but if you want to use this platform to desecrate the memory of Mr Nyembe, and to assault the dignity of his children and his family, be my guest, Chairperson. Thank you, then Mr Mileham, and anyone and Ms Mazzone and everyone…
Chairperson: Thank you, Advocate, thank you Adv Mpofu. Can you flight the tweet?
Mr Mileham: So Ms Baloyi, the tweet is the one in the middle there, and it's dated 10 June 2018. It says, "beyond dispensing political economy, and social political advice to PP, I also jerk up legal services on certain high-level litigation matters, like CIEX/Absa and Vrede dairy farm matter". My question to you is, in your opinion, does this compromise the Public Protector's constitutional obligation to impartiality?
Adv Mpofu: Chairperson.
Chairperson: I want to acknowledge you, Adv Mpofu, and I'm hoping it's not on the same issue that I've just ruled on.
Adv Mpofu: No, it's a different issue, Chairperson and it is... Yes, can Hon Mileham confirm who sent that tweet because there are thousands of people called Sibusiso Nyembe in South Africa?
Chairperson: Thank you, Adv Mpofu. We've got the question. Hon Mileham.
Mr Mileham: Chairperson, the tweet was issued by Mr Sibusiso Nyembe, who, at the time was the so-called political adviser to the Public Protector. His Twitter handle was @sodonkie, and it is his Twitter account.
Adv Mpofu: How do you ... no, Chairperson. Chair?
Chairperson: No, Adv Mpofu, the answer has now been provided who issued the tweet.
Adv Mpofu: No, but that's not an answer. How does he know what Twitter handle? This is a process, Chair This is not a shebeen. You can't just say that this was his Twitter handle, he must demonstrate that that is so if he's if he wants to abuse his name, as you can-
Mr Mileham: Show it on the screen.
Chairperson: Can you please, I want you to pause, Adv Mpofu. Can you flight the tweet, please? And then Ms Baloyi, please respond.
Mr Mileham: Chairperson, immediately under Sibusiso, or immediately next to Sibusiso Nyembe, you can see the Twitter handle, it says @sodonkie, and it says June 10, 2018.
Adv Mpofu: Who's a donkey, Chair?
Chairperson: No, no, please, Adv Mpofu, I don't want us to go to that.
Adv Mpofu: No, no, Chairperson, you must make a ruling.
Chairperson: I am saying that I've made a ruling on this issue. I'm not going to repeat the ruling [Adv Mpofu interrupting the Chairperson] She's going to answer the question, if she's able to answer the question.
Adv Mpofu: Do you know sodonkie, Chairperson?
Chairperson: There are many tweets that were here, we never went to track who this is in the name of this tweet. That's that.
Adv Mpofu: [interrupting] Yeah, but they were not for deceased persons. We have to protect our people. If you don't want to protect our people, we will, we will protect it. The culture of Black people is that you don't abuse-
Chairperson: [shouting] Thank you, Adv Mpofu. Ms Baloyi can you…
Adv Mpofu: [interrupting] You must know that you're not going to abuse us forever.
Chairperson: Ms Baloyi, please respond to the question.
Ms Baloyi: Thank you. This tweet, Chairperson, I see the date is 10 June 2018. And I am not sure why it was done, under which context, especially the first one, I was not aware or I don't know the issues around that. And I think that the second one is just being expressed so I wouldn't say whether it's really the late Mr Nyembe that was doing it in his own personal capacity, or he was actually authorised to do so. I'm not aware of the context of this particular tweet.
Chairperson: Thank you, Ms Baloyi, that would have been your last point.
Mr Mileham: Yes, Chair, I didn't get an answer to her opinion about the comments in that tweet.
Adv Mpofu: Chairperson, that's irrelevant.
Chairperson: Ms Baloyi.
Adv Mpofu: Chairperson?
Chairperson: Ms Baloyi, I've recognised Ms Baloyi, not Adv Mpofu. [Adv Mpofu: Okay. Well... ] Ms Baloyi, please respond.
Adv Mpofu: No, Chairperson, I need to talk before the response. I'm objecting.
Chairperson: Ms Baloyi, please respond to the question.
Ms Baloyi: Thank you, Chair when I think…
Adv Mpofu: An objection before the answer.
Chairperson: You can't be, you can't be dictating when you want your answer. If you're raising a hand, I'll recognise your hand. For now, Ms Baloyi is responding to the question and don't interfere. Ms Baloyi, please respond.
Ms Baloyi: With regards to the first tweet, I think if you can share it again so that I can respond appropriately.
Adv Mpofu: I'm sorry, ma'am. I'm still addressing the Chair.
Chairperson: Ms Baloyi, please continue. I have asked you as a chair, you don't have any other chair here, Mr Mpofu. I've asked you to pause and wait for Ms Baloyi to respond. Please go ahead, Ms Baloyi.
Ms Baloyi: As I stated in terms of my opinion with the first one I was not, I'm not I wouldn't know what political economy and sociopolitical advice was provided to the PP. And about the latter, it's something that I think when I look at it, it's a statement that says he actually assists on high-level litigation matters. I mean this is a person that has got a legal background and being a chief of staff, that probably will do that particular job, but as I stated I'm not sure what was the context of this particular matter. With the second one, for me, when I read it, it was an opinion around the funding in the organisation, but the appropriateness I'm unable to respond on that, because I'm not sure whether he was authorised to deal with this particular matter, but I just see statements being made with regards to these matters.
Chairperson: Thank you. Before I go to the next speaker, Hon Mgweba, the second last speaker, I come back to you, Adv Mpofu, you wanted to raise something.
Adv Mpofu: Yes, well, it's overtaken by events now. I said I wanted to raise it before the question is answered. But for what it's worth, the point I want to register is that this is on you, Chairperson. If you are going to allow this abuse of Mr Nyembe, you are the one who was responsible for it, not the misguided questions regarding his alleged tweet, which we don't even know who's tweeted it. So you must take responsibility for that on behalf of whoever you are acting from.
Chairperson: Hon Mgweba, I recognise you.
Ms T Mgweba (ANC): Thank you very much, Chair and good evening, all. Ms Baloyi, I've got only three questions for you. Firstly, Ms Baloyi in your affidavit, paragraph three, you have stated that you believed, that you believe that you were purged. Again in paragraph four, you stated that you were informed your employment will not be confirmed beyond the probationary period. And during the day, you have also indicated that you have never been assessed for your performance. So Ms Baloyi, do you believe that your rights were infringed?
Ms Baloyi: Thank you for the question. Yes, because I should have been dealt with in terms of the prescripts that were there. And, in essence, it's some of the allegations that were made around the non-confirmation of my appointment. I would have expected that kind of an office to be open with me and stipulate what those areas of misconduct are all about – who I divulged certain information to. I mean, when we deal with an employee, obviously, the facts should have been put up front to me. The manner in which this matter has been dealt with, for me, it was violating my rights to say that a person that has been in the public service for years with top security clearance, that I would have discussed that. I would have expected that, if it's true, the matter be brought forward so that I can be able to defend. And the manner in which issues unfolded with regards to when I was informed that my probation was not confirmed, I didn't see any reason why I should vacate the building and not even work throughout that week of October as if I was a risk. For me, it was a matter of just humiliating me, in essence, and, in short, yes, I felt my rights have been violated.
Ms Mgweba: Thank you very much. Ms Baloyi. Then in paragraph 24 of your affidavit in the High Court challenging your dismissal you have indicated that you were a stumbling block. Please clarify why you consider yourself to have been a stumbling block for the CEO and the Public Protector.
Ms Baloyi: With regards to the stumbling block, it was a matter that was advanced to me by Mr Mahlangu, that it looks like I'm not toeing the line and I'm doing things without applying my mind, and there are matters that I should have dealt with differently with regards to investigations. My worry was… if those issues were discussed earlier with me as to why did I take such a decision or allowed investigators not to deal with this matter in that particular manner, surely, that could have been discussed with me. But rather I was told that you seem to be working on your own with investigators doing their own thing, and without, in some instances, divulging those kinds of issues. He told me that you cannot be trusted when you deal with matters like that; that I'm not dealing with issues correctly. For instance, this came out when we discussed after the matter of Ms Mogaladi, you should have dismissed her a long time ago with regards to that, and I couldn't. Even today, I ask myself why should I have dismissed her. Interestingly when I was dismissed, she was also suspended with other colleagues. My question kept on being why are these things not said in a formal manner or in a way that I would understand – because the work that we're doing was informed by the evidence before us.
Ms Mgweba: So do you think that the CEO was abusing his authority at the behest of the PP?
Ms Baloyi: Correct.
Ms Mgweba: Then the last question, Ms Baloyi, you have raised concerns in your affidavit, the manner in which the Public Protector handled the cases relating to Bosasa and the rogue unit investigations and you have said in response it was unlawful. Is it your evidence that the PP did not act in an impartial manner during these investigations?
Ms Baloyi: Yes, when you look into the gaps in those particular reports that I've raised.
Ms Mgweba: No, thank you very much.
Chairperson: Thank you, Hon Mgweba. Hon Maneli.
Mr B Maneli (ANC): Thank you, Hon Chair.
Chairperson: Go ahead, you're recognised.
Mr Maneli: Thank you Hon Chair. Greetings to members, the team of the Public Protector and the Public Protector, as well as evidence leaders and the witness on the stand. Greetings, Ms Baloyi.
Ms Baloyi: Good evening.
Mr Maneli: Thank you, Chair. My first question really would be the assertion made by the PP in a message to you regarding the Bosasa and CR17 investigation, that in a quote, "it is not about you, but one has to play the chess" close quote. Do you think in conducting this investigation, the PP didn't look fairly on facts beforehand, but went beyond facts beforehand?
Adv Mpofu: Chairperson.
Chairperson: You did not raise your hand Adv Mpofu [Adv Mpofu: I have]. I will not continue allowing if there is no hand. You have only raised now. [Adv Mpofu: No, it was there] Okay, I recognise you, what do you want to raise?
Adv Mpofu: No, I was just wanted to assist, Chairperson. The message that the Hon Member is talking about had nothing to do with the CR17 matter. Thank you, Chairperson.
Chairperson: Thank you. Hon Maneli.
Mr Maneli: Chair, I've asked a question and I read the quotation, I would expect Ms Baloyi to indicate if it's an irrelevant question. Thank you.
Ms Baloyi: Chairperson, can I ask that Hon Maneli repeats the question, I was a bit distracted.
Mr Maneli: I've asked the question, Chair, that the assertion made by the PP in a message to you, regarding the Bosasa and CR17 investigation, and I quoted, "it is not about you, but one has to play the chess". The question was, do you think in conducting this investigation, she looked beyond the facts before her? That was my first question, and I was to follow up the question once I understand your answer. Then of course, I got distracted in that scope. If you think the question is not relevant, that you will be indicating that. That's the point I was making, Chair.
Ms Baloyi: Thank you, Chair, I think, as I stated earlier, that the investigation could have been dealt with differently. And I think this is a report that has been set aside in terms of what the court says. As I stated earlier, I've made submissions on our concern on how to deal with certain matters, including that particular matter because the SARS matter or the other Pillay matter, it was a matter of the contents of that report was correct, but the issue that has been challenged in the courts was around that matter is prescribed. In terms of what has been spoken about as far as that case is concerned with play the chess, I heard Adv Mpofu say that it was because probably, you know, the sabotage which I indicated that I'm not aware of such sabotage.
Mr Maneli: Would you then think, through you Chair, that that approach would have also brought the Office of the Public Protector into the political arena as opposed to straight investigations that just need to be done like any other complaints that come before the Public Protector?
Ms Baloyi: Correct. When you look at the camp, what does the camp mean in such an investigation. Those that were concerned about the content and the performance of the investigators involved, if we knew or were made aware of who those investigators were, probably I will be able to answer that question adequately.
Mr Maneli: Through you Chair, if I may proceed. In paragraph seven of your court affidavit, you indicate that the reports like you said now were dealt with by external parties who reported to the PP directly. Do you think this led to the Office of the Public Protector in carrying unnecessary costs, which could be seen as reckless or wasteful in nature? Also, whether you think this impacts on the independence of the Public Protector's Office?
Ms Baloyi: Thank you, I want to look into that statement that was officially issued in the media by the spokesperson of the Public Protector, that is, was a high level kind of an investigation. My assumption is that those people have top security clearance, and they had the competency to do that particular report. I'm not privy as to whether they've been paid or not. Or if they have not been cleared and they were supposed to have information that is in a state institution. Obviously, those people could have been cleared. But today, I wouldn't talk about whether they've brought the Office into disrepute, because I don't know the profiles of those individuals, including their competencies and qualifications to handle such a case.
Mr Maneli: Through you Chair, if I may just wrap up on that point. Given that you have the system in place for quality assurance when people don't take responsibility, how were situations like this one, treated in terms of ownership by the different levels of quality assurance when they've not been involved?
Ms Baloyi: This was a unique case, as I stated in my affidavit it was it was never done before that I'm aware, since I've been there. That I'm not even sure who quality assured that particular report, because the only time that I had an opportunity to have sight on the contents, it was that day when we, I was supposed to be part of the team that went to deliver that Section 7(9) to the President. But as to the finalisation of the report, is it was I never saw the final report. Except for when it was the time of the of the briefing, and I didn't even have copy myself and I remember quite well, Mr Mahlangu and I did not have copies of that particular report when it was delivered, and on the day that it was publicised. It was the only report that was released.
Mr Maneli: So my second last question just to complete this part about this investigation in particular. Of course, I'll refer to what you've led already about Mr Watson mentioning other political parties as having been funded, including [inaudible] aspect and you tried to explain it. I want to be sure that I've taken correct notes, Chair, that these points are raised, in your view, from a point that these matters, because they have been mentioned, should have been part of the report, or if not, to limit the investigation to the R500 000. But those matters could still be reflected in the report to be investigated elsewhere, other than the Public Protector. I just want to get that point here so that I know the relevance of those two paragraphs.
Ms Baloyi: Correct, even if they were not investigated, then there should have been mention made of those issues in terms of reference. Normally when we conducted an investigation, and we realised that we do not have the mandate to deal with such, a letter will be written to those institutions, whether it's the NDPP, the Hawks, the South African Police Service or any other structure to further investigate or look into those particular matters. Then we would request progress reports on those particular matters.
Mr Maneli: And through you, Chair, in your view that would still constitute quality assurance advice that usually would be given to the investigators in a case where are areas that needed particular attention – without interfering with their work.
Ms Baloyi: Correct.
Mr Maneli: My last point, therefore, Chair. In your observation then did the PP abuse her authority in any way as the Public Protector, having shared all what you've shared with the committee?
Ms Baloyi: [inaudible]
Chairperson: We didn't get that. Just repeat that.
Adv Mpofu: It's her view.
Mr Maneli: Yes. No, the question is, in Ms Baloyi's observation, did the PP abuse her authority in any way as the Public Protector, given all that she has shared with the Committee?
Chairperson: Thank you. Ms Baloyi.
Ms Baloyi: Chair, I would say that yes, but it will be up to the Committee to decide. But in my view the manner in which some of the matters have been dealt with, that was an abuse of authority.
The Chairperson thanked Ms Baloyi for participating and for assisting the Committee in its deliberations and conclusions.
Ms Baloyi said that she was grateful for the opportunity to participate.
Adv Mpofu raised the point that he had not completed his cross-examination of the witness.
The Chairperson replied that, at this point, there did not seem to be a need to recall the witness, unless Adv Mpofu could provide specific questions. The Committee had decided last week to streamline its processes, so witnesses would not be recalled unless absolutely necessary.
The meeting was adjourned.
Dyantyi, Mr QR
Dlakude, Ms DE
Gondwe, Dr M
Hermans, Ms J
Herron, Mr BN
Holomisa, Dr BH
Joemat-Pettersson, Ms TM
Lotriet, Prof A
Mahlaule, Mr MG
Majozi, Ms Z
Mananiso, Ms JS
Maneli, Mr BM
Mgweba, Ms T
Mileham, Mr K
Mulder, Dr CP
Nqola, Mr X
Peters, Ms ED
Seabi, Mr M A
Siwela, Ms VS
Skosana, Mr GJ
Sukers, Ms ME
Tseke, Ms GK
Tshabalala, Ms J
Van Minnen, Ms BM
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