Busisiwe Mkhwebane back in court for R10m gratuity from Office of Public Protector

Former public protector Busisiwe Mkhwebane is expected back in court regarding her urgent application to be paid a R10 million gratuity.

Mkhwebane filed papers in March over the payment of the gratuity, which she argued was due to her.

She turned to the Gauteng High Court in Pretoria to challenge a decision by the office of the Public Protector not to pay her.

While previous Public Protectors received an end-of-service gratuity on leaving office in line with the conditions of service passed by the National Assembly in 2002, the decision to withhold Mkhwebane’s gratuity was informed by a legal opinion stating she was not entitled to the R10 million due to her removal from office.

“No right remedy”

The current Public Protector advocate Kholeka Gcaleka in her affidavit said Mkhwebane had no right to the remedy claimed as she did not vacate office but was removed for serious misconduct and incompetence.

“The applicant has no legal entitlement to gratuity. In fact, a gratuity payment is not a legal right at all. The Constitution does not provide that the Public Protector is entitled to gratuity upon removal from office.”

In April, the Office of the Public Protector was slapped with a costs order as Mkhwebane’s legal challenge over her gratuity payment was delayed.

Impeachment

The Gauteng High Court in Pretoria removed Mkhwebane’s litigation from the urgent court roll, citing that the matter was “not ripe for hearing”.

Judge Colleen Collis criticised the Public Protector’s office and its head, Kholeka Gcaleka, for failing to file documents that explained the rationale behind the Chapter 9 institution’s refusal to pay out Mkhwebane’s gratuity in time for the case to be heard.

Mkhwebane was impeached by the National Assembly just before her seven year non-renewable term ended in September last year.

A Section 194 Committee recommended her impeachment after she was found guilty of misconduct and incompetence during her tenure.

Struggling

Mkhwebane said she was struggling to make ends meet and earning significantly less in her new role as an Economic Freedom Fighters (EFF) MP.

In her application, Mkhwebane highlights the “extended delay in receiving a response from the office of the public protector and Gcaleka and the history of malicious conduct dating back to May/June 2022 as additional grounds for the punitive order being sought”.

Mkhwebane asked for relief in various forms – including that the court orders her former employer to ensure that the gratuity was paid no later than 30 days after the date of the judgment’s delivery.

She previously vowed to fight “dark forces” who want to take away her “hard-earned” benefits.