Delay in Mkhwebane application for R10m pension pay

It is unlikely that the merits of the application brought by former public protector Busisiwe Mkhwebane will be decided this week, in her battle against the office of the public protector to pay the R10 million gratuity she claims to be entitled to.

Her urgent application to the Gauteng High Court, Pretoria, on Tuesday was stood down to Thursday, when the parties will pave the way forward.

Judge Colleen Collis was told by advocate Dali Mpofu, acting for Mkhwebane, that although he and his team were ready to proceed, some documentation was still outstanding, a fault he attributed to the respondents.

He said the office of the public protector and the other respondents knew since March 4 about the application, when it was served on them. They were given timelines to file certain documents which they had failed to do.

Mpofu also complained that the office of the public protector had filed its answering affidavit two days ago and had not complied with the notice of motion as set out in the court papers.

He said it was irregular for the respondent to file this affidavit before the applicant’s side had filed their supplementary affidavit.

“Because they (the office of the public protector) are using taxpayers’ money (to foot their legal fees) they want to answer again,” Mpofu said.

He told the court the respondents were giving his client the runaround, while the matter was in fact urgent.

“Someone’s livelihood has been at stake here since September,” Mpofu said referring to Mkhwebane’s bid to get the millions she claimed to be entitled to.

Advocate Tembeka Ngcukaitobi, acting for the public protector, denied any delays could be attributed to his clients.

He told Judge Collis it was his understanding the matter would not proceed on Tuesday in the normal urgent court.

According to him, there was an agreement between the parties that the matter would be case managed and then allocated to a special (non-urgent) court, to be heard as soon as possible.

He said the facts of the matter were complex and should be dealt with by a separate court, given that the urgent court had time constraints due to the many cases on its roll.

Mpofu denied there was an agreement on his part to seek a special court to hear the matter, but agreed the parties would meanwhile decide on the way forward and inform the judge on Thursday.

One of the matters which is expected to be argued then is who will pay the legal costs for this week’s court appearance if the matter will only proceed at a later stage for the main application Judge Collis asked that they inform her office on Wednesday if the parties could reach agreement regarding the issues she must determine on Thursday Counsel for the office of the public protector and the Speaker for the National Assembly (cited as the fifth respondent) at the start of the proceedings made it clear that they would dispute during the main argument that the matter was urgent and ask that the matter be struck from the roll.

Mkhwebane, who was impeached through a vote in Parliament just weeks before her term was set to expire, is challenging the refusal by her former office to pay her R10 million pension.

The office of the public protector, on the other hand, holds that it is not entitled in law to make the payment, as only those who leave office at the end of their term are entitled to payment and not those who are removed from office.

In her application, Mkhwebane is asking the court to declare the conduct of her former office in refusing to pay her the gratuity, unconstitutional and invalid.

She asked that they pay her the money within 30 days of an order issued in her favour.

In the alternative, she is asking the court to declare clauses of the Public Protector Service Conditions to be illegal if it stood in the way of her receiving her payment.

Cape Times