The court battle over impeached former public protector Busisiwe Mkhwebane’s exit gratuity, reportedly about R10m, was “not ripe for hearing”, ruled the Pretoria high court judge Colleen Collis on Thursday as she removed it from the urgent court roll.
She slapped the office of the public protector with a punitive costs order, saying the office and the public protector Kholeka Gcaleka were “solely” to blame for the fact that the case was not ready to be heard.
“It’s their actions which have resulted in this application not being ripe for hearing,” she said.
Collis said that the office of the public protector was meant to have given Mkhwebane a “record of decision” — the documents relied on in coming to its decision to refuse the gratuity — by the date she had set out in her application but had not done so.
She quoted from a Constitutional Court judgment that said the record was an “invaluable tool in the review process”. It would have allowed Mkhwebane to supplement her grounds of challenging the decision, she said.
She ordered that the record be produced by Friday. All the parties must then approach the deputy judge president for an expedited date for the case to be heard.
The office of the public protector refused to pay Mkhwebane the gratuity, saying because the former public protector was impeached, or “removed from office”, she is not entitled to it.
During Thursday’s argument, Mkhwebane’s counsel, Dali Mpofu SC, told the court “the reality is that there’s no defence to her claim”.
The day was mostly spent wrangling about whether the case was urgent and whether it should be heard immediately or postponed.
Mpofu argued the case was urgent and that Gcaleka’s office had ignored the timelines set by Mkhwebane’s legal team for the filing of court papers. They had not filed the record; and the answering affidavit put into court earlier this week by Gcaleka and her office was “a mirage” and “a smokescreen”, said Mpofu.
This was because, under court rules, the answering affidavit was supposed to come after the record; and after Mkhwebane had an opportunity to supplement her own founding affidavit, he said.
“There is no answering affidavit,” said Mpofu.
Collis said the delivery of the answering affidavit was “completely premature” given that there was no record of decision. But she was not persuaded by Mpofu’s argument that she should hear the full application immediately and grant a form of judgment by “default, for want of a better word”. Default judgments are granted when no-one opposes the case.
Gcaleka’s counsel, Tembeka Ngcukatobi SC, argued that the timeline set by Mkhwebane for the filing of court papers was not reasonable. He said the public protector’s office had been given five days to produce the record and five days to file an answering affidavit. Meanwhile, she had taken three weeks to file her founding affidavit.
In heads of argument, he said Mkhwebane was removed from office in September 2023 and informed of the decision not to pay her a gratuity on February 12 2024. The court matter was launched on March 1 2024.
“This was already self-created urgency,” he said.
Ngcukaitobi said: “The correct thing to do in this case to set a timetable for a special motion, without the posturing and without the attempts to take advantage, and without the attempts to score points. The matter should go to special motion court and all of the parties’ rights will be vindicated.
“The accusations about perjury, the accusations about the Constitutional Court ruling on the duty to provide the record, those will all be dealt with in due course. They don’t have to detain the urgent court ... Ms Mkhwebane will have her full rights to make any accusation that she wants to make.”
But Mpofu said the three weeks was fully explained in Mkhwebane’s founding affidavit and every step was accounted for. He said that in the end the public protector and Gcaleka had taken more time over the record than an ordinary litigant had under the rules even when it was not in urgent court.
Mpofu said the statute that governed the gratuity was “very clear”.
“If you vacate, you get your gratuity. It has nothing to do with morality and all these things that are now being introduced. And that vacation is conceded, in a way.”
However, in Gcaleka’s affidavit — the one Mpofu said was not before the court and Collis said was premature — Gcaleka said vacation of office was different from removal from office.
“Had she vacated office without blemish, the applicant would have been considered for gratuity — though she would not have been legally entitled to it.”
But the full merits of the case are yet to be argued — at a later date as per Collis’s order. Once Mkhwebane has seen the record — due on Friday — she may supplement her court papers. Then, Gcaleka and her office may also have more to say in their own responding court papers still to be filed.
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