Following a war of words which lasted almost all of Thursday, the urgent legal bid by former public protector Busisiwe Mkhwebane for the office of the public protector to pay the R10 million gratuity she claims she is entitled to, will only be heard in about a month’s time.
The parties head back to the Gauteng High Court on Thursday, after the matter stood down earlier in the week to pave the way forward for the application.
Advocate Dali Mpofu, acting for Mkhwebane, told Judge Colleen Collis that in his view, none of the respondents, which include the office of the public protector and its head, Kholeka Gcaleka, followed the correct legal procedures in opposing the application.
He said the first option would be if the court heard the matter as an unopposed application, thus without hearing any of the respondents.
Option two – which was chosen by the court – was to remove the matter from the roll so that the parties could approach the judge president for a special allocation of the matter due to its complexity.
But Mpofu made it clear that the office of the public protector had to pay Mkhwebane’s wasted costs – on a punitive scale – for this week’s urgent application.
The key reason why the matter could not proceed – with the office of the public protector and Gcaleka, shortly before the proceedings were due to commence– only indicated their opposition.
This was because they had not yet provided Mkhwebane with a record of the proceedings relating to their decision not to pay her gratuity.
Mpofu said the respondents were aware for weeks that he needed this record so that Mkhwebane knew exactly the case she had to fight and to file further court papers dealing with the office of the public protector’s reasons for not wanting to pay her.
Counsel for the public protector’s office gave an undertaking that Mpofu will have the record by (today) Friday.
In slapping the office of the public protector with a punitive costs order, Judge Collis said the latter’s office was the reason why this matter was not yet ripe for hearing. She said the office of the public protector knew it had to deliver the record much earlier, yet it did not.
Mpofu told the court the matter was of extreme urgency, and that his client was being severely prejudiced by the conduct of her previous office. He said she needed the money, among others, to pursue further legal proceedings.
Advocate Tembeka Ngcukaitobi, acting for the public protector, denied that any delays could be attributed to his clients. He told Judge Collis that it was his understanding that the matter would not proceed this week due to its complexities.
He said the Council for the Advancement of the South African Constitution (Casac) indicated they may want to join the proceedings.
Ngcukaitobi denied the matter was urgent and said Mkhwebane lost her job in September, yet she was now only coming to court. Mpofu hit back, saying it was because her former employer kept on telling her the matter of gratuity was being investigated.
Counsel for the Speaker, meanwhile, received a tongue-lashing from both the court and Mpofu, as this office did not file any opposition to the application, yet he told the court they would only oppose the urgency of the matter.
Judge Collis said she would not hear them until the National Assembly officially filed their papers. In her application, Mkhwebane said she could hardly make ends meet, considering the drastic reduction in her monthly income since she was kicked out of office.
She said after the May elections she was not guaranteed any income.
“This application involved the most egregious and multiple violations of my human rights ... I am being denied money which is due to me, especially in these hard economic times. It has always been my intention to use part of the money to fund litigation to challenge my illegal removal.”
Cape Times