Former public protector Busisiwe Mkhwebane.
The Johannesburg high court on Thursday awarded punitive costs in favour of former public protector Busisiwe Mkhwebane in her urgent court bid to force the chapter nine institution to pay her a R10 million gratuity.
Judge Colleen Collis said it was squarely the fault of the office of the public protector that the matter was not ripe for hearing because it had yet to file the rule 53 record of documents informing the decision to deny the gratuity.
This was despite the fact that Mkhwebane filed her notice of motion in early March and expressly called for the filing of the record and any reasons relating to public protector Kholeka Gcaleka’s decision.
“The failure to have furnished the record has the unintended consequence that the application to date is not ripe for hearing,” Collis said, adding that it should consequently be removed from the urgent roll.
Blame was “solely” to be placed at the door of the respondents who gave opposition to the application to date, Collis said, therefore Mkhwebane should not be left out of pocket, if the application could not proceed.
“They are the litigants who ought to have filed the record and the reasons for the decision when they were called upon to do so,” she continued.
“In the circumstances, the cost order that ought to accompany the removal of the application from the urgent roll this week ought to be visited upon the first respondent.”
Counsel for the public protector, advocate Tembeka Ngcukaitobi SC, objected to costs being awarded on a punitive attorney-client basis, but Mkhwebane’s lawyer, advocate Dali Mpofu SC, opposed this.
Collis directed that the record be filed on or before Friday.
Her order is a blow for the office of the public protector, particularly since Gcaleka has argued that it was in financial difficulty after paying for Mkhwebane’s legal representation in the impeachment inquiry that led to her removal from office.
“She left the office in financial dire straits,” Gcaleka said.
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.
In her answering affidavit, Gcaleka said financial hardship or loss of income alone did not constitute sufficient grounds for urgent relief.
It was an established principle of law that exceptional circumstances must be demonstrated before urgent relief can be granted on the basis of financial hardship alone, and Mkhwebane had failed to do so.
Moreover, Mkhwebane was earning a salary.
“The applicant has not lost income. In fact, she is earning a substantial amount as a member of parliament.”
Nor, she said, would her predecessor suffer irreparable harm if her application was not treated as urgent.
“This is a money claim. This can be recovered in due course.”
Gcaleka denied any obligation in law to pay the gratuity, which would have come out of the Public Protector Revenue Fund, saying it was discretionary.
“By its nature, a gratuity payment creates no rights and imposes no legal obligation,” she said.
Second, she said, in the applicable statutory and contractual framework, gratuity payments are considered only in the case of officials who have vacated office, not those who have been removed from office.
“The applicant was removed from office. She did not vacate office with a clean record. This disentitles her from consideration of gratuity payments.”
Mkhwebane argues in her court papers that this was wrong law, and that at least 10 of her constitutional rights had been violated.
“The court will be invited to invoke values such as fairness, reasonableness, justice and ubuntu, the details and relevance of which, I am advised, will be further discussed during legal argument.”
But Mkhwebane stressed that she viewed the decision to deny her a gratuity, when all her predecessors were paid one, as discriminatory and arbitrary.
“The mere fact that, unlike me, they vacated their office at the expiry of their terms does not provide sufficient justification for any differentiation in the circumstances,” she said.
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.”
The office of the public protector initially budgeted R4 million for Mkhwebane’s financial costs in the parliamentary impeachment inquiry that ultimately resulted in her removal from office, but this was exceeded several times over.
“In reality, it cost substantially more,” Gcaleka said.
“The office paid R31.1 million for the applicant’s legal counsel; R380 000 to the legal team; R330 000 for the travelling costs and R565 000 for protectors.”
Apart from that, the public protector incurred R147 million in costs arising from legal challenges to reports produced by Mkhwebane, including in the South African Reserve Bank report, the South African Revenue Services report and the Vrede Dairy Project report.
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.
This, Gcaleka added, did not stop Mkhwebane from behaving as if she had an absolute right to unlimited funding from the state for lawyers of her choosing and no obligation to spend that which she was given wisely.
“The applicant’s failure to effectively utilise the resources provided, coupled with her numerous legal challenges, resulted in unnecessary delays and financial strain.”
The money was given, despite reservations as to whether Mkhwebane had a right to it, so as to facilitate her participation in the impeachment inquiry. Instead she was consistently obstructive, notably failing to comment on the draft report of the committee’s findings against her.
Gcaleka stressed that, as a result of Mkhwebane’s runaway spending on lawyers, the office of the public protector had exceeded its annual budget in relation to legal fees.
In light of this and fiscal prescripts, she said, her expectation of unlimited support from public funds was untenable.