MK bid to block Batohi pension tests limits of presidential power

The North Gauteng High Court in Pretoria has reserved judgment in an urgent application by the uMkhonto weSizwe Party (MK Party) to interdict the payment of former national director of public prosecutions Shamila Batohi’s pension and related benefits.

Proceedings before Judge Nicoline Janse van Nieuwenhuizen on Wednesday focused on whether the application met the threshold for urgency and whether there was a legal basis to halt the payment of benefits pending further processes.

The MK Party is seeking an order to stop the payment of Batohi’s pension, gratuity and other post-employment benefits. In court, its counsel, advocate Kameel Premhid, argued that the disbursement of state-funded benefits would result in “rule of law harm”.

“It cannot be that now her term of office has come to an end, her accountability has come to an end,” Premhid said.

Premhid told the court that the application was limited to the state-funded portion of the pension. In response to a question from the bench, he confirmed that the party was seeking to interdict government contributions rather than Batohi’s personal contributions.

“​Yes, My Lady, that would most sensibly be the case,” Premhid said when asked whether the relief sought related only to the government component of the pension.

The MK Party’s application is based on allegations relating to Batohi’s conduct during proceedings of the Nkabinde Inquiry. The party’s court papers cite concerns about her testimony and her conduct during her appearance before the inquiry.

The party is also seeking further relief to allow a review of the decision to pay out benefits and to take steps to recover any funds, if necessary.

Opposing the application, counsel for the presidency, advocate Nyoko Muvangua, argued that the matter did not meet the requirements for urgency.

“If the applicant cannot establish prejudice … the application cannot be urgent,” Muvangua told the court.

Muvangua submitted that the applicant had not demonstrated that irreparable harm would occur if the matter was not heard on an urgent basis. He argued that the issues raised could be addressed through ordinary legal processes.

The presidency’s response, contained in court papers filed earlier this week, states that there is no legal mechanism to prevent the payment of Batohi’s pension in the manner sought by the applicant.

In her answering affidavit, Batohi denies allegations of misconduct and maintains that she is entitled to her pension and related benefits under the law.

“I deny that I ‘lied’ to the panel,” Batohi states in her affidavit.

She adds that her evidence before the inquiry was consistent and that she acted in accordance with the law during her tenure as national director of public prosecutions.

“My evidence was consistent throughout,” she states.

Batohi further states that she acted “lawfully, ethically … in accordance with the constitutional standard”.

Advocate Geoff Budlender, appearing for Batohi, argued that the application had no legal basis. He said pension benefits were governed by statute and operated on fixed rules, meaning that once a member qualified to retire, they were entitled to receive the benefits.

Budlender added that no judgment had been issued against Batohi and no quantifiable financial loss had been identified. As a result, no debt has been established against her.

The MK Party’s application is structured in multiple parts. The urgent component seeks immediate relief to prevent payment of benefits, while subsequent parts seek a review of the legality of the payments and potential recovery of funds.

The court heard that the application raised questions about the timing of benefit payments and the processes that might follow the conclusion of the inquiry.

During the hearing, the court engaged with counsel on the scope of the relief sought and the practical implications of granting an interdict.

Judge Janse van Nieuwenhuizen asked for clarity on whether the sought order would apply to the entire pension or only to specific components, prompting the applicant to confirm its position on government contributions.

The hearing also addressed whether the applicant had demonstrated sufficient grounds for the court to intervene at this stage.

After hearing arguments from both sides, the court reserved judgment.

A written ruling is expected to determine whether the application meets the threshold for urgency and whether the court can grant the relief sought by the MK Party.

The outcome will also address whether there is a legal basis to interdict the payment of state-funded pension benefits pending further proceedings.