By Lehlohonolo Lehana.
The High Court in Pretoria has postponed an urgent case brought by former public protector Busisiwe Mkhwebane to Thursday.
Mkhwebane approached the court to challenge the Office of the Public Protector’s decision not to pay her R10 million gratuity.
She was impeached in September last year, a few weeks before the end of her seven-year term as head of the Chapter 9 body.
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 legal counsel, Advocate Dali Mpofu, argued that the decision not to pay her gratuity was unlawful and that Mkhwebane is entitled to costs if the matter is considered not urgent.
Her successor Kholeka Gcaleka determined Mkhwebane does not qualify for the payment because of the circumstances in which she left.
Advocate Tembeka Ngcukaitobi SC, 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.”
The court decided to postpone the matter to allow the parties to agree on technicalities.
Meanwhile, in a report from October last year, Gcaleka said work was underway to recoup money from the axed Public Protector.
Gcaleka added it’s up to Parliament to determine whether Mkhwebane should be paid the R10-million gratuity benefit following her removal from office.