Mkhwebane’s legal action removed from urgent court roll

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Former Public Protector Advocate Busisiwe Mkhwebane’s legal action for a gratuity payment of millions of rands has been removed from the urgent court roll for enrolment on an alternative date and the Office of the Public Protector has been hit with costs.

This after the court determined that the matter was not ripe for hearing on Thursday.

Mkhwebane approached the High Court in March on an urgent basis, asking it to declare the conduct of the Office of the Public Protector and its head, Advocate Kholeka Gcaleka, unconstitutional and invalid in their refusal to pay the gratuity.

The matter saw delays after the parties could not reach a consensus on the way forward, leaving the court to make that determination.

“It appears that the parties hold different views on what the issues ought to be that the court must determine today but in essence what overlaps is, in fact, the urgency of the application on the side of the 1st and 2nd respondents on whether (it) ought to have been enrolled on the urgent roll for adjudication today. And this is amongst the other issues that the applicant has also tabled before the court in its letter that the court has to adjudicate,” says Justice Colleen Collis in her introductory remarks.

The Gauteng High Court highlighted that this was a matter of great importance which  raises issues of a complex nature before the court.

“The outcome of these proceedings holds serious consequences for both the parties before the court. On the side of the respondents, if the relief is to be granted, it will have an impact on further matters before this court in future, of a similar nature, and on the side of the applicant, it will also hold consequences for the applicant if this relief is to be refused. It is against this backdrop that I hold the prima facie view that the dispute between the parties needs to be adjudicated and determined having regard to the totality of the evidence that needs to be placed before this court,” she adds.

Counsel on behalf of the former Public Protector submitted that there was no compliance from the respondent, the Office of the Public Protector, specifically with the period set out in the notice of motion with the furnishing of the record.

“I raised it with my learned friend. I said well you can’t give us an answering affidavit, you must give us the record. It was on that occasion that the record was promised. Instead of being given a record, we are given something called an answering affidavit and a condonation notice,” says Advocate Dali Mpofu SC on behalf of  Mkhwebane.

When the court sought an explanation from the respondent regarding the failure to comply, counsel cited an unreasonable timetable.

“The first question is, did the applicant formulate reasonable timeframes,” Advocate Tembeka Ngcukaitobi, asked the court on behalf of Office of the Public Protector.

Justice Collis quickly interjected asking Ngcukaitobi SC whether it is the legal respondents  case that the timeframes set in the notice of motion were not reasonable

“Absolutely not, we examine that at paragraph 11,” Adv Ngcukaitobi SC responded.

Following all submissions, the court concluded that the matter was not ripe for hearing and ordered that the application be removed from this week’s urgent roll for enrolment on an alternative date to be determined by the Deputy Judge President upon being requested by the parties.

The Office of the Public Protector was ordered to deliver the record and reasons behind the decision not to pay the gratuity before 19 April 2024.

In addition, the court ordered the first respondent, the Office of the Public Protector to pay the costs on the attorney and client scale.

Video: Mkhwebane challenges decision on her gratuity: Adv Stefanie Fick weighs in