By Lehlohonolo Lehana.
Impeached Public Protector Busisiwe Mkhwebane’s application for her successor, Kholeka Gcaleka, to be jailed for alleged contempt has been set aside as an irregular step by the Gauteng High Court in Pretoria.
This comes after the Court heard an interlocutory application brought by Gcaleka on Wednesday (19 June 2024) which asked the court to set aside the new cause of action Mkhwebane introduced through an amended notice of motion in her main gratuity case.
Counsel on behalf of Gcaleka contended that it was an irregular step which merely sought to “punish and harass” the Public Protector.
Mkhwebane launched an urgent court bid to force the chapter nine institution to pay her a R10 million gratuity.
In her application, Mkhwebane pleaded poverty, arguing that she could “hardly make ends meet”, given her drastic reduction in salary after she went from being public protector to a member of parliament.
She was impeached for misconduct and incompetence and removed from office by President Cyril Ramaphosa in September last year, just weeks shy of the end of her seven-year term of office.
Mkhwebane was sworn in as an MP for the Economic Freedom Fighters the following month. But she argued that she found herself in doubt of a guaranteed income, given that the 29 May national elections are around the corner.
A judgment on Friday penned by Judge Janse Van Nieuwenhuizen found, among other things. That the amended notice of motion was an irregular step and non-compliant with the Uniform Rules of Court.
Mkhwebane was also ordered to pay the costs of the application, including the costs of two counsel.
Gcaleka said if she were to consider a payment in this instance, she would find herself in breach of the prohibitions on fruitless and wasteful expenditure in the Public Finance Management Act.
Beyond all of this, though, she said Mkhwebane was proceeding as if she had not inflicted substantial damage on the finances of the chapter nine institution.
The applicant completely ignores the financial wreckage she brought into the office, and which I inherited, and I am in the process of cleaning up.
Gcaleka said her office paid Mkhwebane’s legal costs during the impeachment inquiry, despite the fact that the courts never determined whether Mkhwebane was entitled to counsel funded from the public purse, merely that she had the right to be assisted and represented by lawyers in the section 194 process in which MPS considered her fitness to hold office.