New light on R5m claim against Mkhwebane
● It was a damning letter demanding R5m worth of “wasteful expenditure” be repaid that triggered the latest spat between impeached former public protector Busisiwe Mkhwebane and her successor Kholeka Gcaleka.
Mkhwebane vented on social media platform X that Gcaleka had retaliated with the demand after being hit with punitive costs — related to Mkhwebane’s legal pursuit of an estimated R10m gratuity. Gcaleka’s office is claiming millions from Mkhwebane for hotel, transport, security, legal and technology bills incurred while she was in office.
Mkhwebane, however, claimed being billed for “wasteful expenditure” amounted to an “abuse of power”. The letter, seen by the Sunday Times, by CEO Thandi Sibanyoni was delivered to Mkhwebane on Thursday.
Among the items the public protector’s office is trying to recoup is R31,000 for computers, an iPad and an iPhone.
Sources with knowledge of the spat said Mkhwebane was also billed for the use of petrol cards allocated to cars for her use and protection for several days after she was removed from office. The office of the public protector is also trying to recover:
• More than R2m spent on accommodation at a prestigious state housing development at Bryntirion Estate in Pretoria; and
• More than R3m in legal costs incurred during a defamation court battle with the DA and others, defending a perjury charge and legal advice for a crowdfunding campaign intended to cover legal costs for which Mkhwebane was liable in her personal capacity.
A further R40,000 is owed for other assets bought for Mkhwebane that were not returned after her removal from office.
Mkhwebane went to court in a bid to pocket the
gratuity, claiming she was entitled to it. Gcaleka refused to pay because Mkhwebane was impeached, or had been “removed from office” in unusual circumstances.
Pretoria high court judge Colleen Collis removed the case from the urgent court roll on Thursday, saying it was “not ripe for hearing”.
The court ordered the public protector’s office to pay legal costs, blaming the delay on the office of the public protector because 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 for challenging the decision, she said.
She ordered that the record be produced by Friday and that all parties must then approach the deputy judge president for an expedited date for the case to be heard.
Gcaleka’s counsel, Tembeka Ngcukaitobi 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, Mkhwebane 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. The court matter was launched on March 1.
“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.”
On Friday, the public protector’s office responded to a deadline to file its reasons for not paying the gratuity, saying it was placed in a “seriously invidious position” because parliament did not guide it over the exit gratuity.
On Friday Mkhwebane reposted a tweet claiming Gcaleka was “out for blood upon realising that she’s going to lose her case on the refusal to pay @AdvBMkhwebane her gratuity”.
“The abuse of power by Gcaleka is beyond disgusting. She’s determined to ensure that Adv Mkhwebane doesn’t receive all her benefits,” Mkhwebane posted on X.
The public protector’s office could not be reached for comment yesterday. Mkhwebane did not reply to requests for comment.
Additional reporting by Franny Rabkin