Busisiwe Mkhwebane’s urgent court bid over withheld gratuity is postponed

Former public protector Busisiwe Mkhwebane's urgent High Court challenge against the decision not to pay out her end-of-term 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 enquiries have been met with silence, she said.

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

The matter was due to be heard before judge Colleen Collis on Tuesday 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, argued that Mkhwebane was entitled to costs if the matter were allocated to a nonurgent court.

“One of the things we will insist on is the issue of costs because this is an urgent application. This is somebody whose livelihood is affected and this runaround has been going on since September last year. […] Only last Thursday did we hear from anybody in this matter,” he said.

Advocate Tembeka Ngcukaitobi, for the public protector’s office, insisted if the issue of costs is to be heard it must 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 Wednesday “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 [Wednesday] midday to lineate the issues the court will ... determine on Thursday. The costs are reserved until then,” she said.

Mkhwebane was impeached by parliament in 2023, rendering her ineligible to receive the payout, the protector’s office said. She was removed as the public protector in September by the National Assembly, with 318 MPs voting for her removal against 43 who voted to keep her. One MP abstained.

President Cyril Ramaphosa removed her a day later.

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