The sparring between public protector Adv Kholeka Gcaleka and her predecessor Adv Busisiwe Mkhwebane over the non-payment of her loss-of-office gratuity has resumed, nearly 17 months after Mkhwebane was dismissed by the Gauteng high court.
In court papers filed in the high court in Pretoria this week, Gcaleka is asking the court to throw out Mkhwebane’s condonation application as well as an application for leave to appeal.
The former EFF MP and former MKP MP is seeking leave to appeal a judgment of the high court and another of the Supreme Court of Appeal that turned down her bid for the Office of the Public Protector to pay her a loss-of-office gratuity worth millions of rand after she was impeached by parliament in 2023.
Gcaleka has come out guns blazing against her predecessor, poking holes in the condonation application and her application for leave to appeal.
Gcaleka first takes issue with Mkhwebane approaching the high court only on December 12 2025, 14 months after the SCA ruled against her in October 2024.
“In terms of Rule 49(1)(b) of the Uniform Rules of Court, a litigant seeking to appeal a judgment and order must file their application for leave to appeal within 15 days, failing which the application must be preceded by a condonation application. In this matter, the applicant filed her application for leave to appeal on 12 December 2025, precisely 14 months after Mooki J handed down the judgment.
“The application for leave to appeal is woefully out of time. The applicant accepts that she has failed to comply with the prescribed time periods, and has filed an application for condonation,” Gcaleka argues in her court papers through lawyers Frances Hobden and Ntokozo Zwane.
“The explanation advanced for the delay is inadequate and does not cover the entirety of the delay; 14.3. The applicant’s erstwhile attorneys’ negligence to file the application for leave to appeal timeously does not constitute a reasonable justification for the delay; and 14.4. The delay is too excessive (14 months) and therefore prejudicial to the first and second respondents.”
Despite the best efforts of the applicant to investigate what happened it remains unclear whether the remissness was in the court system or with the previous attorneys. The likelihood is the latter.
— Adv Dali Mpofu
But in her condonation application, Mkhwebane’s legal team argues she had met all requirements for the application, blaming its delay on her previous lawyers.
“It is in the interests of justice to grant such condonation. Indeed the delay is unusually long. However, such length is as a result of the mistaken but bona fide belief which was held by the applicant that the application had indeed been delivered in time. As it turned out, that was not done.
“Despite the best efforts of the applicant to investigate what happened it remains unclear whether the remissness was in the court system or with the previous attorneys. The likelihood is the latter. In either event the applicant has apologised to the court and the respondents for the inconvenience cause,” Mkhwebane’s lawyers argued, led by senior counsel Adv Dali Mpofu.
“It is common cause or indisputable that this matter is complex and unprecedented. If the appeal is successful, as it has strong prospects of success, it will have huge ramifications for the well-being of the applicant personally, but it will also carry huge potential impact to other holders of special public offices such as heads of Chapter 9 institutions and/or judges who may be subjected to constitutional removal. Considering all the pleaded circumstances, it is in the interests of justice to grant the application for condonation.”
Adv Terry Motau SC, arguing for the fifth respondent in the matter and National Assembly speaker Thoko Didiza, set his sights on Mkhwebane’s reliance on the Basic Conditions of Employment Act, among other reasons.
They argue that Mkhwebane was not entitled to the payment of the gratuity because she did not “vacate office” but left because of “removal from office”.
“The applicant’s argument requires the BCEA to operate independently of entitlement and compel payment despite non-fulfilment of the condition. That construction is untenable. Critically, the fact that the applicant does not challenge the court’s finding that she did not ‘vacate office’, demonstrates that the condition that would make her eligible for consideration for payment of a gratuity was not fulfilled. Instead, the applicant seeks to rely on the BCEA as an independent source or cause of entitlement. That approach is contrary to the ratio of the judgment and has no foundation in law.
“On the court’s findings, the triggering condition (’vacation of office’) did not occur; the gratuity did not accrue; and no obligation to pay arose. It follows that if no remuneration became due, section 32 is not engaged; and the BCEA provides no basis for relief. The applicant’s BCEA ground misconstrues the function of the statute; ignores the court’s dispositive finding on entitlement and seeks to create a right where none exists. It is accordingly unsustainable. This ground fails as a matter of logic and law.”
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