Busisiwe Mkhwebane entitled to R10m gratuity payout, court hears

Busisiwe Mkhwebane’s legal team has argued that the Office of the Public Protector is legally obliged to pay her a R10 million gratuity in line with the basic conditions of the Employment Act.

Mkhwebane was back in the Gauteng High Court on Monday before Judge Omphemetse Mooki in her urgent application to be paid what is due to 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.

Mkhwebane was impeached in September 2023.

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.

Employment contract

However, her lawyer Advocate Dali Mpofu argued that for the purpose of the case, they will look at Mkhwebane’s service as an employment contract.

“The basic conditions of the Employment Act applies here because we know the Act applies to everyone except those people who are excluded from it such as members of the intelligence services and that kind of thing,” he said.

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Mpofu said the central question in the matter is whether there’s a “legal or rational explanation” for the introduction of a forfeiture clause which would only entitle a public protector to a gratuity if they are not found guilty of certain transgressions.

“You can’t just dream up a forfeiture clause as you go along every day you wake up. A forfeiture clause is what you call a penal provision, by definition. It’s a provision that introduces a penalty. It’s why it’s called a forfeiture clause, because you forfeit that which has accrued.”

Mkhwebane ‘struggling to make ends meet’

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

She 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.

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