Public Protector’s office ordered to pay Mkhwebane’s legal costs for delay

The Office of the Public Protector has been slapped with a costs order as Busisiwe Mkhwebane’s legal challenge over her gratuity payment of R10 million was delayed.

The Gauteng High Court in Pretoria removed Mkhwebane’s litigation from the urgent court roll on Thursday, citing that the matter was “not ripe for hearing”.

Judge Colleen Collis criticised the Public Protector’s office and its head, Kholeka Gcaleka for failing to file documents that explained the rationale behind the Chapter 9 Institution’s refusal to pay out Mkhwebane’s gratuity in time for the case to be heard.

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Collis, therefore, ordered Gcaleka’s office to pay punitive legal costs and gave the institution until Friday, 19 April, to submit the necessary documents.

The case will be heard on a date yet to be determined.

Mkhwebane has since reacted to the court’s ruling.

Adv Gcaleka @PublicProtector who was represented by Adv Ngcukaitobi SC to oppose the payment of the gratuity was ordered to pay Adv Mkhwebane punitive costs.

Also the court found that she made factually incorrect allegations under oath which constitutes the criminal offence of…

— Adv Busisiwe Mkhwebane (@AdvBMkhwebane) April 18, 2024

Mkhwebane impeachment

The decision to withhold Mkhwebane’s gratuity was informed by a legal opinion stating that the former Public Protector was not entitled to the R10 million due to her removal from office.

Mkhwebane was impeached as Public Protector by the National Assembly just before her seven year non-renewable term ended in September last year.

A Section 194 Committee recommended her impeachment after she was found guilty of misconduct and incompetence during her tenure.

READ MORE: Mkhwebane’s ‘conflict of interest’ derails deputy public protector search

The current Economic Freedom Fighters (EFF) MP was informed of the decision not to pay her a gratuity on 12 February this year.

She then launched her legal action on 1 March.

Mkhwebane, in her court papers, has asked for relief in various forms – including that the court orders her former employer to ensure that the gratuity was paid no later than 30 days after the date of the judgment’s delivery.

She previously vowed to fight “dark forces” who want to take away her “hard-earned” benefits.

Ex-Public Protector entitled to payout?

This week, a legal expert told The Citizen that Mkhwebane’s entitlement to the gratuity was contentious.

Legal analyst, Mpho Sehume, emphasised the inherent uncertainty surrounding legal outcomes and the importance of considering the specific facts of Mkhwebane’s case and the interpretation of relevant laws by the presiding judges.

Sehume said in this context, it was important to “meticulously examine the circumstances surrounding her tenure as public protector, including the grounds for her impeachment and any allegations of misconduct”.

“These factors, will play a crucial role in shaping the legal arguments presented by both parties and influencing the court’s decision,” Sehume said.

Meanwhile, Mkhwebane’s legal representative, Advocate Dali Mpofu, argued that the denial of his client’s gratuity was unlawful.

Additional reporting by Reitumetse Makwea