Mkhwebane Seeks Punitive Costs Against Successor in Gratuity Dispute

Former Public Protector Busisiwe Mkhwebane is seeking a punitive costs order against her successor, Kholeka Gcaleka, for opposing her challenge to the non-payment of a R10 million gratuity. The Gauteng High Court in Pretoria removed Mkhwebane's litigation over the gratuity payment from the urgent court roll on Thursday, criticizing Gcaleka's office for failing to file documents explaining the rationale behind the decision to withhold the funds.

Judge Colleen Collis ordered the Public Protector South Africa (PPSA) to pay the costs of the urgent hearing on a punitive attorney-client scale, expressing dissatisfaction that the PPSA had not yet filed the Rule 53 record of documents that underpinned its decision. The court gave the institution until Friday, 19 April, to submit the necessary documents, with the case to be heard on a date yet to be determined.

Mkhwebane, who was impeached as Public Protector by the National Assembly just before her seven-year non-renewable term ended in September last year, has asked the court to order her former employer to ensure that the gratuity is paid no later than 30 days after the date of the judgment's delivery. The decision to withhold her gratuity was informed by a legal opinion stating that she was not entitled to the R10 million due to her removal from office.

In court, 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. Gcaleka denied any obligation to pay the gratuity, stating that Mkhwebane was removed from office and not entitled to it. Gcaleka also argued that Mkhwebane had inflicted substantial financial damage on the office, with legal costs exceeding R31 million during her impeachment inquiry.

Why this matters: The dispute between Mkhwebane and her successor highlights the ongoing fallout from her controversial tenure as Public Protector and the financial implications for the Chapter 9 institution. The outcome of this case could set a precedent for how gratuities are handled for officials removed from office through impeachment.

While Judge Collis did not support Mkhwebane's demand for a punitive costs order against Gcaleka personally, she did rule in favor of Mkhwebane regarding the PPSA's failure to provide timely documentation. The judge found that Gcaleka may have committed perjury by making inaccurate allegations under oath and dealt a blow to the office of the public protector by ordering the record to be filed by Friday. The high-stakes legal battle between the former and current public protectors is set to continue as Mkhwebane seeks to secure her disputed R10 million gratuity payment.

Key Takeaways

• Mkhwebane seeks punitive costs order against successor Gcaleka over gratuity dispute.
• Court criticized PPSA for failing to file documents, ordered record submission by Friday.
• Mkhwebane seeks court order to ensure R10M gratuity payment within 30 days.
• Gcaleka denies obligation to pay gratuity, cites Mkhwebane's costly impeachment inquiry.
• Case could set precedent for gratuities of officials removed through impeachment.