Denying Mkhwebane R10m gratuity ‘arbitrary, cruel, degrading’ – Mpofu

The North Gauteng High Court has heard that denying impeached former public protector Busisiwe Mkhwebane her R10 million gratuity was “arbitrary, cruel and degrading”.

Mkhwebane was back in court on Monday before Judge Omphemetse Mooki in her urgent application to be paid what she claims is due to her.

Spokesperson for the Jacob Zuma Foundation and newly appointed uMkhonto weSizwe (MK)party MP Mzwanele Manyi was also in court to support the embattled former public protector.

‘Denying gratuity’

It was a long day of legal wrangling, with Mkhwebane’s lawyer, Advocate Dali Mpofu, tenaciously arguing that the Public Protector of South Africa’s (PPSA) decision not to pay her the gratuity was malicious and vindictive.

Mkhwebane has claimed poverty, saying she is struggling to make ends meet and earning significantly less in her new role as an Economic Freedom Fighters (EFF) MP.

“To deny a person in the position of the applicant such entitlements would be arbitrary and nothing short of cruel and degrading double punishment. It plainly offends against the value of ubuntu,” Mpofu argued.

ALSO READ: Busisiwe Mkhwebane entitled to R10m gratuity payout, court hears

Lengthy argument

Mpofu’s argument was supposed to take two hours to explain why the PPSA should be ordered to pay Mkhwebane her gratuity, but he only concluded his arguments after 4pm, which resulted in the Public Protector’s advocate, Tembeka Ngcukaitobi, telling Mooki: “I have been here before.”

During Mpofu’s marathon argument, he also questioned the PPSA’s decision not to pay Mkhwebane her gratuity.

“What do they gain by advocate Mkhwebane not getting her gratuity What do they get by singling her out from all the other Public Protectors since 1994 who have been paid their gratuity,” Mpofu argued.

However, Mooki interjected Mpofu, saying that Mkhwebane did not complete her term, News24 reported.

“No, Mr Mpofu, that’s not entirely correct. They say the applicant [Mkhwebane] is the first ever Public Protector to have been taken through the Section 194 process, that certain findings were made about her and for that reason and others, it’s not a surprise that she – unlike other Public Protectors – is not due a gratuity”

Impeachment

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.

Current Public Protector Kholeka Gcaleka said Mkhwebane left the PPSA “in financial dire straits” after she was removed for misconduct and incompetence, following a Section 194 inquiry supposed to cost R4 million but which saw Mkhwebane’s lawyers paid more than R32 million.

“Millions upon millions wasted by the public protector and her team on frivolous and irrelevant arguments and witnesses called, as well as the never-ending demand for postponements,” she said.

“It all amounts to a staggering R160 million, if you add all the costs orders and the legal costs – money we won’t get back.”

Gcaleka added that Mkhwebane’s demand for a R10 million payout also ignored the “financial wreckage” she had left her previous office in, including a staggering R147 million spent on defending indefensible reports.

She argued that Mkhwebane’s removal from office due to misconduct and incompetence disqualified her from receiving the gratuity she seeks.

Forfeiting gratuity

Should the court rule that Mkhwebane forfeits a portion of the R10 million gratuity due to her, it would not be the first time that a former Public Protector has had to forfeit a portion of their gratuity.

In 2016, after Madonsela completed her term of office, Mkhwebane herself arbitrarily deducted R470,000 from Madonsela’s R4-million gratuity for repairs to an official vehicle paid for by the office. This after her son took her X6 BMW out without her permission and crashed it.

Madonsela at the time believed that former president Jacob Zuma or those sympathetic to him might have been the reason for the reduction in her gratuity at the end of her term in office.

Madonsela will no doubt be most remembered for her two sensational reports involving Zuma: the first concerning improper upgrades to his private home, Nkandla, and the second raising serious questions about his relationship with the controversial Gupta family.

Advocate Ngcukaitobi is expected to present the case against Mkhwebane’s claim that she is entitled to the gratuity on Tuesday.

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