Ex-public protector’s battle for R10m payout

FORMER public protector Busisiwe Mkhwebane and her successor, Kholeka Gcaleka. are at loggerheads over millions of rand due to the EFF MP. Picture: Theo Jeptha/Independent Newspapers

FORMER public protector Busisiwe Mkhwebane and her successor, Kholeka Gcaleka. are at loggerheads over millions of rand due to the EFF MP. Picture: Theo Jeptha/Independent Newspapers

Published Apr 21, 2024


PUBLIC Protector Kholeka Gcaleka has complied with the North Gauteng High Court order forcing her to deliver the record the reasons for refusing to pay the R10 million gratuity due to her predecessor, Busisiwe Mkhwebane.

Mkhwebane’s attorney, Brandon Tshabangu, confirmed to the Sunday Independent that the office of the Public Protector had delivered the records in compliance with the court order that was obtained on Thursday when Judge Colleen Collis ordered the record and reasons for the decision be delivered the following day.

Gcaleka’s office this week claimed victory in the legal battle launched by Mkhwebane over the non-payment of the EFF MP’s R10m gratuity.

Mkhwebane has approached the North Gauteng High Court in a bid to have Gcaleka and President Cyril Ramaphosa’s refusal to pay the gratuity due and payable to her declared unconstitutional and invalid in terms of the Constitution.

The Constitution stipulates that the powers of courts in constitutional matters extend to declaring that any law or conduct is inconsistent with the supreme law in the land.

Mkhwebane also wants to be granted just and equitable remedies including, but not limited to, severance and/or an order directing Gcaleka and Ramaphosa to take the necessary steps to ensure payment of the gratuity forthwith and/or by no later than 30 days after the date of the high court’s order.

The Constitution enjoins courts decide a constitutional matter within its power. It may make any order that is just and equitable including limiting the retrospective effect of the declaration of invalidity and an order suspending the declaration of invalidity for any period and on any conditions to allow the competent authority to correct the defect.

As an alternative, Mkhwebane wants clause three of the public protector service conditions to be declared illegal, null and void and/or unenforceable for being contra bonos mores (against good morals).

In addition, Mkhwebane wants the public protector and the president to be found in breach of the Basic Conditions of Employment Act and order specific performance and/or mandamus directing payment of the gratuity within 30 days.

A mandamus is a court order that compels a public authority or corporation to perform a public or statutory duty.

She is also asking the court to review and set aside Gcaleka’s decision made or communicated in February 2020 on the grounds of the Promotion of Administrative Justice Act and/or illegality.

According to Mkhwebane, Gcaleka and Ramaphosa seemingly and mistakenly believe that there are no enabling legal provisions empowering the payment of the gratuity, which the impeached ex-public protector states stems from the failure to properly interpret the relevant constitutional and other provisions.

She said as an MP she earns a substantially reduced remuneration compared to her previous position.

”I can hardly make ends meet considering the drastic reduction in my monthly income of the preceding seven years,” Mkhwebane explained.

She added that earlier this year she was notified by Gcaleka and Ramaphosa’s lawyers that a decision had been taken not to pay out her gratuity because she did not vacate her office out of her own volition but following the adoption of the motion to remove her.

Gcaleka’s acting spokesperson Ndili Msoki said Judge Collis’s decision to remove Mkhwebane’s matter from the urgent court roll and directing parties to approach Deputy Judge President Aubrey Ledwaba for the case management of the application so that it can be heard as a special motion.

”This is what the Public Protector SA proposed to the court, and it is notable that the court, in fact, granted same. The Public Protector SA will not entertain any unfounded accusations. The merits of the main application are still the subject of ongoing litigation,” he said.