Legal expert weighs in on Mkhwebane ‘payout’ after removal

Axed Busisiwe Mkhwebane has made it known that she is not letting her “hard-earned” R10m gratuity handshake slip her through her fingers without a fight.

Mkhwebane, who was fired by President Cyril Ramaphosa on Tuesday, could forfeit the loss-of-office gratuity for leaving office a month before her tenure of office was due to end. Her seven-year term was supposed to expire in mid-October.

READ MORE: Here’s how much Mkhwebane could lose after being booted from PP office

Briefing media last month at the Premier Hotel in Midrand, Gauteng, Mkhwebane said she was entitled to the R10m gratuity, even if she is removed before her term ended.

Mkhwebane should not be entitled to benefit from PP office

Speaking to The Citizen, high court attorney Richard Chemaly said the public protector service conditions do not make an accommodation for voiding benefits if the public protector is removed from office.

“One may think that if somebody is removed from office for misconduct, they should not be entitled to benefit from it. However, in the case of the public protector gratuity, it is an entitlement upon ‘vacation of office’,” said Chemaly. 

According to the public protector service conditions, conditions of employment make provision for a gratuity calculated “with the formula D/7 x 2 x (E+3) x F, in which formula the factor”. 

D represents the salary (basic per annum) which at the time of his or her vacation of office was applicable to the office of the public protector, E represents the period in years of his or her period in such office, and F represents the provision for the calculation of income tax calculated at a marginal rate of 40%.

Going to court

The document also differentiates between vacation and removal from office, stating “on removal from office, vacation of his or her office or the death of the public protector, his or her effects may be transported, once only, at state expense to any place in South Africa where he or she or the surviving spouse, as the case may be, is to settle”. 

“If this went to court, I would imagine it would be the distinction drawn on, especially since the latter parts were added later,” said Chemaly.

ALSO READ: ‘If I perish, I perish’ – Busisiwe Mkhwebane fights firing as public protector

“While it is not surprising that section 194 makes no mention of this, it’s curious why the committee never raised it anywhere in the 404-page report. If one studies the financials of the public protector’s office, one will notice that every year, an amount is allocated to this gratuity in anticipation of payout so it has been budgeted.”

Mkhwebane welcome to take the report on review

Reacting to her firing, Mkhwebane told The Citizen she would meet with her legal team to discuss a way forward.

Parliament noted Mkhwebane was strategising with her legal team to possibly interdict the process from continuing in the National Assembly. 

“Mkwhebane has brought numerous unsuccessful legal challenges in respect of the section 194 process. Parliament has a responsibility to ensure that it conducts its work diligently and without delay. The committee is confident the process it followed was fair and therefore any attempt at interdicting parliament from performing its constitutional functions will be defended.

“Notwithstanding these threats, it is noted that Mkwhebane ultimately did not seek to interdict the National Assembly from proceeding with its debate and vote,” said parliament. 

It said Mkhwebane was welcome to take Section 194 Committee Report on review. 

“Mkwhebane has a constitutional right to take the report on review. The committee remains confident that its process was fair and that the threshold for removal has been met. The committee has always acknowledged that the process was novel and has far-reaching consequences and as such is susceptible to legal challenge.”