Court to rule on Busisiwe Mkhwebane’s R10 million payout demand

Impeached former public protector Busisiwe Mkhwebane will, on Wednesday, learn if she will be awarded her R10 million gratuity.

Mkhwebane has been embroiled in a fierce legal battle with her former office over her payout.

Gauteng High Court Judge Omphemetse Mooki is expected to deliver the judgment in Pretoria early in the morning.

“The reserved judgement on the 20^th of August will be delivered in an open court,” the Judiciary said.

‘Entitled’

During court proceedings in August, Mkhwebane’s counsel, Advocate Dali Mpofu, argued that her removal from office for misconduct and incompetence was “irrelevant” to her entitlement to the R10 million payout.

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

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“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.”

‘Constitutional delinquency’

However, counsel for the Public Protector, Tembeka Ngcukaitobi, argued Mkhwebane’s impeachment was the first time a president had removed an individual from the office of Public Protector in terms of Section 194.

Ngcukaitobi said rewarding Mkhwebane the R10 million gratuity would “set a bad precedent”.

“It is an entirely legitimate constitutional purpose to say that, as a matter of South African law, someone who has no respect for their oath of office should not get a gratuity.

“Otherwise, what you have is a free-for-all. What you have is a reward for constitutional delinquency. And this, I’m afraid, my Lord, is the big elephant in the room that this case, really what it is about, is asking the judge to be party to a reward for constitutional delinquency,” Ngcukaitobi said.

Mkhwebane struggling

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.

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.

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