REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
Case No: 2024 - 023495
Reportable: No
Of interest to other Judges: No
Revised: No
SIGNATURE
Date: 15 April 2026
In the matter between:
BUSISIWE MKHWEBANE Applicant
and
THE OFFICE OF THE PUBLIC PROTECTOR 1st Respondent
KHOLEKA GCALEKA 2nd Respondent
THE PRESIDENT OF THE REPUBLIC 3rd Respondent
OF SOUTH AFRICA
THE MINISTER OF FINANCE 4th Respondent
THE SPEAKER OF THE NATIONAL ASSEMBLY 5th Respondent
2
JUDGEMENT
_____________________________________________________________________________________________
MOOKI J
1 The applicant seeks condonation for the late prosecution of her application
for leave to appeal. The Court rendered judgement on 9 October 2024. Any
leave to appeal had to have been filed by 31 October 2024. The applicant
filed her leave to appeal on 12 December 2025. The first and second
respondents (Public Protector) oppose the granting of condonation.
2 I heard the application in the whole, meaning that the parties addressed the
Court both on condonation and leave to appeal. I first address the
condonation application.
3 The applicant says that she immediately instructed her then attorneys to
prosecute an appeal to the Constitutional Court and a conditional appeal to
this Court. The conditional appeal was an annexure to the application for
direct access to the Constitutional Court. The conditional appeal is dated 29
October 2024.
4 The applicant says she gave clear instructions to Mr Shabangu of Shabangu
Inc, her then attorneys, to file and serve the two applications timeously.
The application to the Constitutional Court was filed on 30 October 2024.
The Constitutional Court informed the applicant on 23 May 2025 that she
had been refused direct access to that court.
3
5 The application for leave to appeal to this Court, as stated above, was filed
on 12 December 2025. The applicant says that she was under the honest
impression that both applications were filed simultaneously and that all
appeal processes were properly under way. She says that “it now seems
like my erstwhile attorney did not file the conditional application for leave
to appeal” with this Court, contrary to her instructions, and that the
attorney “without advising me of the consequences or the correct
procedure … elected only to file an application for direct access to the
Constitutional Court only.”
6 It was only “very recently”, according to the applicant and following a
diligent search and enquiries with the Registrar, that the applicant became
aware that the application had not been filed. The applicant says the delay
is approximately 6 months and that she truly believed that everything was
in order during that period. She continued that it was her belief that her
then attorneys were unfamiliar “with the very unusual procedure of filing
simultaneous and/or conditional application for leave to appeal”. She
further stated that it could be that her then attorneys did not realise the
need to file the application separately in this Court. The applicant stated, in
the alternative, that “something went wrong in the Registrar’s office or
during the process of filing.”
7 The applicant says that the hearing of the application for leave to appeal
will not come as a surprise to the respondents. That is because the
respondents were always aware of her intention to prosecute the appeal, as
shown by the conditional application annexed to proceedings in the
4
Constitutional Court. She further contends that she will be prejudiced
should the application not be heard because “the matter concerns the
illegal non-payment of my benefits following 7 years of service as the Public
Protector of South Africa.” The applicant contends that the respondents
“will not suffer any prejudice whatsoever if condonation is granted.”
8 The Public Protector contends that the applicant failed to provide the Court
with a clear and honest explanation for the delay; that the office of the
public protector will be prejudiced by having to record the matter as a
contingent liability, and that the intended appeal has no prospects of
success.
9 The Public Protector accepts that the applicant annexed a conditional
application for leave to appeal in the application to the Constitutional
Court. She disputed that the lodging of process in the Constitutional Court
interrupted the requirements for the filing of an application for leave to
appeal in the High Court. At best for the applicant, the Public Protector
contended that the application was woefully out of time even if the period
for the delay was calculated with reference to 23 May 2025, when the
Constitutional Court dismissed the application for direct access. This
application was brought more than six months after the Constitutional
Court refused the application for direct access.
10 The applicant, according to the Public Protector, failed to provide a full and
satisfactory explanation for her failure to comply with the time periods and
sought to blame her previous attorney, whilst the applicant’s explanation
for her own role in the delay was vague and superficial. The applicant
5
would, according to the Public Protector, and by virtue of the applicant
being an experienced litigator both professionally and in person, have been
aware of the need to follow -up with her attorneys and to instruct them to
request a date for the hearing of the application.
Analysis
11 I accept that the applicant would not have been able to prosecute her
application pending the outcome of proceedings before the Constitutional
Court. The delay in filing her application for leave to appeal must then be
reckoned from 23 May 2025, when the Constitutional Court dismissed her
application for direct access to that court.
12 The applicant says that her conduct was always that of a person who
wished to pursue the matter. She admits having always been aware of the
applicable timelines specified in the Rules. She says in the founding
affidavit that the Constitutional Court dismissed her application for direct
access on 23 May 2025. Her very next averment is that it was “[o]nly very
recently and after a diligent search and enquiries with the Registrar” that
she discovered that the application had not been filed in Court. She deposed
to the affidavit in support of the condonation application on 11 December
2025, with the application itself being filed the next day. The applicant is
practically silent on what happened between 23 May 2025 and the filing of
her application. She does not say when “very recently” she established that
the application had not been filed. She does not say whether she enquired
from her former attorneys about the status of the application.
6
13 The applicant admits being familiar with the timelines specified in the
Rules. She knew on 23 May 2025 that her application to the Constitutional
Court had been dismissed. She did not make contact her former attorneys
about the next steps now that the Constitutional Court had dismissed her
application. I do not accept that the applicant found out “very recently” that
the application had not been filed in Court.
14 The applicant would have briefed her new attorneys, informing them that
the Constitutional Court dismissed her application on 23 May 2025. The
applicant would also have informed her new attorneys about her intended
conditional application to this Court. The applicant is silent about her
instruction to the new attorneys regarding her intended conditional
application. This is more so considering that the new attorneys came on
record on 28 October 2025. There is no explanation why the applicant’s
new attorneys did nothing to prosecute the application if those attorneys
were briefed to prosecute the intended application for leave to appeal.
There was more than a month between 28 October 2025 and the filing of
the application for leave to appeal on 12 December 2025, after the new
attorneys came on record.
15 Mr Mpofu SC, counsel for the applicant, submitted, when the Court pointed
out that the applicant was silent regarding steps taken during the period 28
October 2025 to 12 December 2025 given that she had new attorneys, that
“things don’t work smoothly in real life.” This cannot be an exoneration.
The applicant’s newly appointed attorneys would be expected to bring
themselves up to date, including by perusing the conditional application.
7
They would have known that the application had not been filed in Court.
The applicant therefore knew, or should have known, long before 11
December 2025 that the application had not been filed in Court. She did
nothing to rectify the situation.
16 The applicant did not address the criticism by the Public Protector that the
applicant did not substantiate her averments. The Public Protector also
pointed out that the applicant does not say that her previous attorneys
informed her that the application was not filed. The criticism has merit. The
applicant does not say when she commenced with “proper enquiries” and a
“diligent search”. She also did not say when, in fact, she became aware that
the application had not been filed.
17 An applicant for condonation must be frank with the court. The applicant is
required to be frank with the Court by giving particulars in her founding
affidavit. The applicant’s bland assertion that her explanation was sufficient
demonstrates that she does not have an answer to the criticism raised by
the Public Protector.
18 The applicant’s explanation for the delay is wholly inadequate. I do not
accept that she made enquiries that she contends for. She does not give
details of the enquiries that she made with the Registrar. More importantly,
she does not say what was the outcome of the enquiries that she made with
the Registrar. The Registrar would have informed her of the status of the
application if the applicant had, in fact, made such enquiries. I am fortified
in my view that the applicant did not make enquiries with the Registrar for
the following further reason. The applicant says elsewhere in her founding
8
affidavit, in seeking to explain the delay, that something could have gone
wrong at the office of the Registrar, resulting in the delay. The applicant
cannot resort to such speculation if, in fact, she made enquiries with the
Registrar. The applicant’s mentioning of the Registrar is a deflection of her
own remissness. It is also misleading. The fact that the applicant does not
say what was the outcome of her enquiries with the office of the Registrar
substantiates my view that the applicant did not make the enquiries.
19 The applicant sought to blame her then attorneys for the failure to file the
application on time. She mentioned in her application to the Constitutional
Court that the conditional application had been filed in this Court. She later,
in this application, speculated that her then attorneys did not file the
application because those attorneys were perhaps unfamiliar with the
procedure to be followed pertaining to the filing of conditional applications.
20 There is no confirmatory affidavit by the applicant’s then attorneys. This is
not explained. Mr Mpofu invited the Court to “read between the lines” when
the Court raised the absence of a confirmatory affidavit by the applicant’s
then attorneys of record.
21 Courts do not determine matters by “reading between the lines.” The
authorities are, in any event, clear that there is a limit to indulging a litigant
where a legal practitioner does not perform his office properly. 1 The
applicant has not, in any event, shown that her then attorneys of record
were at fault. This is more so because the applicant is familiar with Rules
1 Saloojee and Another NNO v Minister of Community Development 1965 (2) SA
135 (A), at 141
9
governing process in the courts. She therefore knew that she had to
prosecute her application before this Court once the Constitutional Court
dismissed her application for direct access.
22 I conclude that the applicant has not, in substance, explained the delay. I do
not accept her unsubstantiated averments that she made enquiries. Her
averments are misleading, as shown by the internal contradiction in her
founding affidavit and her failure to address the specific points raised by
the Public Protector.
23 I raised with Mr Mpofu that the condonation application did not address
the prospects of success. Mr Mpofu referred me to a section of the founding
affidavit under the heading “Prospects of success” as setting out the
applicant’s contentions on this aspect. The applicant averred that “…these
prospects are dealt with fully in the application(s) for leave to appeal and
there is no need to repeat them.” The applicant would thus incorporate her
affidavit in proceedings before the Constitutional Court regarding the
prospects of success for purposes of the condonation application.
24 The applicant does not mention “prospects of success” in her application to
the Constitutional Court. The application for leave to appeal before this
court also does not address the prospects. It bears pointing out that an
application for leave to appeal is made on notice, not on notice of motion. A
litigant in such application sets out grounds which a litigant contends merit
granting leave to appeal. These grounds do not constitute what is required
to be set out, as regards “prospects of success”, in a condonation
application. The requirement in a condonation application is that a litigant
10
must set forth, briefly and succinctly, such essential information as may
enable the court to assess such a litigant’s prospects of success. 2 The
applicant did not do this.
25 The applicant contends that the respondents are not prejudiced by the
delay in filing her application. This is denied by the Public Protector. The
absence of prejudice to a respondent is not determinative as to the grant or
otherwise of condonation. A court may refuse condonation even where
another party is not prejudiced.3
26 It was submitted on behalf of the applicant that condonation be granted,
notwithstanding shortcomings in explaining the delay in filing the
application. That is because a court, ultimately, decides a condonation
application with reference to whether it is in the interests of justice to grant
condonation. The applicant submitted that her application merits the
granting condonation.
27 The applicant referenced the following as showing that it is in the interests
of justice for the Court to grant condonation: the delay was not deliberate;
her attorney caused the delay; she acted promptly once she became aware
of the omission, and because it would otherwise be manifestly unjust for an
important and unprecedented constitutional issue to remain unresolved by
a competent court.
2 Rennie v Kamby Farms (Pty) Ltd 1989(2) SA 124 (A), at 131E
3 Ferris and Another v Firstrand Bank Limited and Another 2014 (3) SA 39 (CC),
para 11
11
28 An applicant’s prospects of success and the importance of the issue to be
determined are relevant factors in considering whether it is in the interests
of justice for a court to grant condonation. 4 The applicant did not address
the prospects of success in her application.
29 The applicant agrees that the primary dispute in the main proceedings
entails the interpretation of her contract. Specifically, the interpretation of
the conditions of service regarding payment of a gratuity. The Court
addressed this dispute in the main judgement. The court also dealt with the
applicant’s contention that her main application raised constitutional
issues.
30 I am not persuaded that it is in the interests of justice to grant condonation.
The applicant does not deal with the prospects of success. She blames her
then attorneys for the delay. She failed to put up her exchanges, if any, with
her then attorneys to allow the court to test her claim. She has, in any event,
a remedy against her then attorneys if those attorneys were remiss in
carrying out their office.5
31 It does not serve the interests of justice for a litigant who seeks the
indulgence of a court to do so by putting out a case that is premised on a
falsehood. The applicant claims to have made enquiries with the Registrar. I
have detailed why that is not true.
32 It is unnecessary to address the application for leave to appeal, given my
refusal to grant condonation. It is sufficient to say that I would have
4 Ferris, para 10
5 Ferris, para 25, 31
12
dismissed the application. I would also have refused leave to appeal. The
dispute in the main proceedings is fundamentally about the interpretation
of the conditions of service. There are no constitutional issues that arise, as
detailed in the main judgement.
33 The first and second respondents are the only respondents who opposed
the condonation application.
34 I make the following order:
(1) The application for condonation is dismissed.
(2) The applicant is ordered to pay the costs of the first and second
respondents in the condonation application, including the costs of two
counsel. The costs of counsel are on Scale B.
O MOOKI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Heard on: 8 April 2026
Decided on: 15 April 2026
Counsel for the applicant: DC Mpofu SC (together with L Moela)
Instructed by: MT Makhubela Inc.
Counsel for the first F Hobden (together with N Qwabe)
and second respondents:
Instructed by: Werksmans Attorneys