former public protector Busisiwe Mkhwebane;
TThe Johannesburg High Court on Thursday ruled in former public protector Busisiwe Mkhwebane's emergency court awarding punitive costs in her favor in her case to force a Chapter 9 institution to pay R10 million in compensation. I put it down.
The matter was not ripe for a hearing because Judge Colleen Collis had not yet produced a written record under Rule 53 informing her decision to deny the key money, so the issue was not ripe for hearing at the Office of the Public Protector. He said it was his direct fault.
This was despite Mr Mkhwebane filing a notice of claim in early March, explicitly asking for records and reasons relating to Public Protector Kholeka Gkaleka's decisions.
“The failure to provide records has the unintended consequence that the application to date is not ripe for hearing,” Collis said, adding that it should therefore be removed from the emergency list.
Mr Collis said the onus should fall “solely” on the respondents who had previously opposed the application, and therefore Mr Mkhwebane should not be left out of pocket if the application could not proceed.
“These are the litigants who should have provided the record and the reasons for their decision when asked to produce the record,” she continued.
“In these circumstances, a costs order in connection with the removal of the application from the emergency list should be made to the first defendant this week.”
Advocate Thembeka Ncukaitobi SC, the public protector's lawyer, objected to costs being awarded on a punitive solicitor-client basis, while Ms Mkhwebane's lawyer, advocate Dali Mpofu SC, objected to this. opposed.
Mr. Collis directed that the records be submitted by Friday.
Her order is a blow to the public protectorship, particularly as Mr Gkareka claims he ran into financial difficulties after paying for Mr Mkhwebane's legal representation in the impeachment inquiry that led to his removal from office. It becomes.
“She left the agency due to financial difficulties,” Mr Gacareka said.
In his application, Mkhwebane complained of poverty, claiming he was “barely able to make ends meet” given the drastic reduction in his salary after he went from being a welfare worker to becoming an MP.
She was impeached on charges of misconduct and incompetence and removed from office by President Cyril Ramaphosa in September last year, just weeks before the end of her seven-year term.
Mr Mkhwebane was sworn in as an Economic Freedom Fighters MP the following month. However, she questioned the income security, she claimed, given the May 29 national election looming.
In his answering affidavit, Gkareka said financial hardship or loss of income alone is not sufficient basis for emergency relief.
The principle of law was that exceptional circumstances must be demonstrated for emergency relief to be granted solely on the basis of economic hardship, but Mr Mkhwebane failed to do so.
Additionally, Mkhwebane was paid a salary.
“The applicant has not lost any income. In fact, she earns a significant income as a member of parliament.”
There is also no chance of her predecessor suffering irreparable harm if the application is not treated as urgent, she said.
“This is a claim for money. This will be recovered in due course.”
Mr Gacareka denied any legal obligation to pay the honorarium, which was supposed to be paid from the Public Guardian Revenue Fund, calling it discretionary.
“By its very nature, gratuity payments do not create any rights or impose any legal obligations,” she said.
Secondly, she said that under the applicable statutory and contractual framework, the payment of gratuities would only be considered in the case of staff who have resigned from their positions, not those who have been dismissed.
“The applicant has been dismissed. She has not left office with a perfect record. This deprives her of the right to be considered for payment of gratuities.”
Mkhwebane claims in court papers that this is a wrong law and violates at least 10 constitutional rights.
“Courts will be asked to invoke values such as fairness, reasonableness, justice and ubuntu, but I believe the details and relevance of these will be further discussed in legal arguments. ”
But Mkhwebane stressed that he considered the decision to deny her a gratuity, when all her predecessors had been paid, as discriminatory and arbitrary.
“Unlike me, the mere fact that they left office at the end of their term is not sufficient justification to differentiate the circumstances,” she said.
Ms Gkaleka said consideration of a payment in this case would be in breach of the Public Finance Management Act's prohibition on futile and wasteful expenditure.
But beyond all this, she said, Mr Mkhwebane was proceeding as if he had not caused significant damage to the Chapter 9 institution's finances.
“The applicant has completely ignored the financial wreckage that I inherited that she brought into the office and is currently cleaning up.”
The Office of the Public Protector had initially earmarked R4 million for Mr Mkhwebane's financial costs in the parliamentary impeachment inquiry that ultimately led to his removal from office, but this amount has increased several times over.
“It actually cost a lot of money,” Gacareka said.
“The authority paid R31.1 million in legal fees for the applicant; R380,000 for the legal team; R330,000 for travel expenses and R565,000 for the protector.”
Separately, the Public Protector has been awarded R147 million in costs arising from legal challenges to reports produced by Mr Mkhwebane, including the South African Reserve Bank Report, the South African Revenue Service Report and the Vrede Dairy Project Report. I borne the burden.
Mr Gkaleka said the court had never decided whether Ms Mkhwebane was entitled to a lawyer funded from public funds, but simply that she was entitled to the assistance and representation of a lawyer under section 194. He said his office had paid Mkhwebane's legal costs during the impeachment inquiry, although he only said there was. In the process, MPS determined that she was suitable to hold her public office.
Mr Gakaleka says this makes Mr Mkhwebane act as if he has an absolute right to unlimited funding from the state for lawyers of his choice and no obligation to use the funds given to him wisely. He added that he did not stop it.
“The applicant's failure to effectively utilize the resources provided, combined with the numerous legal challenges, has resulted in unnecessary delay and financial burden.”
Money was given to Ms Mkhwebane to facilitate her participation in the impeachment inquiry, despite reservations about whether she had the right to do so. On the contrary, she has been consistently obstructive, particularly failing to comment on the draft report of the committee's findings against her.
Mr Gkaleka highlighted that as a result of Mr Mkhwebane's overspending on lawyers, the Office of the Public Protector exceeded its annual budget in terms of legal fees.
Given this situation and the fiscal provisions, expectations for unlimited support from public funds are not sustainable, she said.
