Former Public Protector Busisiwe Mkhwebane briefs media at Midrand in Johannesburg on 30 August 2023. Picture: Nigel Sibanda
The Public Protector of South Africa’s (PPSA) legal team has rubbished comparisons of impeached public protector Busisiwe Mkhwebane to one of South Africa’s most famous struggle icons Robert Sobukwe.
Mkhwebane is challenging the PPSA’s refusal to pay out her R10 million gratuity after she was impeached by the National Assembly for misconduct and incompetence during her tenure.
Her council Advocate Dali Mpofu at the Gauteng High Court in Pretoria on Monday argued that the PPSA’s decision was ‘arbitrary, cruel, degrading’ insisting that Mkhwebane’s predecessors received the gratuity.
Mpofu in a lengthy argument went as far as likening Mkhwebane to Sobukwe in her challenge to get the money.
However, council for the PPSA Advocate Thembeka Ngcukaitobi rubbished the argument during court proceedings on Tuesday.
“Advocate Mkhwebane is not Robert Sobukwe. She is not getting the gratuity because the instrument does not permit the payment of a gratuity to a person removed from office for misconduct and incompetence.”
ALSO READ: Denying Mkhwebane R10m gratuity ‘arbitrary, cruel, degrading’ – Mpofu
Ngcukaitobi said Mkhwebane’s impeachment was the first time a president had removed an individual from the office of Public Protector in terms of Section 194.
He said Mkhwebane did not meet the requirements for the gratuity payment.
“The condition for the payment [gratuity] is vacation, and vacation is a term recognised by law. What is clear about this idea of office vacation is that it is different from removal. Removal is not included in vacation, and this was not an error. Vacation was not dealt with in the Public Protector Act, but dealt with in the rules.”
Ngcukaitobi told the Pretoria High Court that Mkhwebane quoted and relied on a repealed section of the Public Protector Act in her founding affidavit.
He said Mkhwebane became notorious for misquoting laws when she was found guilty of misconduct and incompetence during her tenure.
“So, we can ask the question then, which other public protector in the history of the Office of the Public Protector has ever had these findings made against them? The answer is that it is Advocate Mkhwebane.
“So, when the Office of the Public Protector says to her, ‘in these circumstances we are unable to locate a statutory authority to pay you a gratuity’, they are not being biased against her. They are not being malicious against her or unfairly discriminatory against her. They are telling the truth, any other finding is just a distortion of the truth,” Ngcukaitob said.
Ngcukaitobi wrapped up his submissions and the case is continuing.
Judge Omphemetse Mooki reserved judgment in the matter saying he will make a ruling as soon as possible.
ALSO READ: Busisiwe Mkhwebane entitled to R10m gratuity payout, court hears
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