Mkhwebane’s urgent court bid over gratuity postponed

Former public protector Busisiwe Mkhwebane’s urgent high court challenge against the decision not to pay out her end-ofterm gratuity has been postponed in the Pretoria high court.

Mkhwebane said the public protector’s decision was unlawful and unconstitutional.

Despite numerous attempts by her legal representatives to engage the public protector regarding the gratuity stipulated in her employment conditions of service, their inquiries had been met with silence, she said.

Her successor, Kholeka Gcaleka, determined Mkhwebane did not qualify for the payment because of the circumstances in which she had left.

The matter was due to be heard before judge Colleen Collis yesterday, but had to be stood down due to several issues, including costs and where the matter would be enrolled.

Mkhwebane’s representative, advocate Dali Mpofu SC, argued Mkhwebane would be entitled to costs if the matter was allocated to a non-urgent court.

“One of the things we will insist on is the issue of costs, because this is an urgent application,” Mpofu said.

“This is somebody whose livelihood is affected and this runaround has been going on since September last year.

“For people to wait a month to do anything Only last Thursday did we hear from anybody in this matter,” he said.

Advocate Tembeka Ngcukaitobi SC, for the public protector’s office, insisted that if the issue of costs was to be heard, it had to be in conjunction with urgency.

“Otherwise costs must be reserved to be decided by whoever decides the main application.

“There is no way we can separate costs from urgency because the first question is why did the applicant enrol [the urgent application]?” he said.

Collis asked the parties to address a letter to her by today “indicating what issues you would want the court to adjudicate further and what consensus, if any, you’ve reached around the ring court and how the matter is to progress”.

“We are standing the matter down until Thursday for hearing.

“The parties recording they had undertaken to address a letter to the court by tomorrow [today] midday to lineate the issues the court will ... determine on Thursday.

“The costs are reserved until then.”

Mkhwebane was impeached by parliament last year, rendering her ineligible to receive the payout, the protector’s office said.

She was removed in September by the National Assembly, with 318 MPs voting for her removal against 43 who voted to keep her. One abstained.

President Cyril Ramaphosa removed her a day later.