FOLLOWING a war of words which lasted for the bulk of yesterday, the urgent legal bid by former public protector and EFF MP Busisiwe Mkhwebane for the office of the public protector to pay the R10 million gratuity she claims to be entitled to, will only be heard in about a month’s time.
The parties head back to the Gauteng High Court yesterday, after the matters 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 biggest 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 – was because they have 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 now 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 is 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 that this is a matter of extreme urgency, and that his client is being severely prejudiced by the conduct of her previous office. He said she needed the money for, 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 in the normal urgent court due to its complexities.
He also said the Council for the Advancement of the South African Constitution (Casac) indicated they may want to join the proceedings as a friend of the court.
Ngcukaitobi denied the matter is urgent and said Mkhwebane lost her job in September, yet she is now only coming to court. Mpofu in this regard hit back and said it is because her former employer kept on telling her the matter of gratuity is being investigated.
Counsel for the Speaker for the National Assembly, 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 will only oppose the urgency of the matter.
Judge Collis said she will not hear them further, until the national assembly has officially filed their papers.
In her application, Mkhwebane said she can 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 is 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 due to me to fund litigation to challenge my illegal removal (from office).”
The office of the judge president is meanwhile yet to set a date for the urgent gratuity hearing.
Pretoria News