Mkhwebane seeking R10m gratuity tantamount to ‘constitutional delinquency’

The North Gauteng High Court in Pretoria has heard that granting impeached former public protector Busisiwe Mkhwebane a R10 million gratuity would be tantamount to rewarding “constitutional delinquency.”

After two days of arguments, Judge Omphemetse Mooki reserved judgment on Tuesday, saying he will make a ruling as soon as possible.

Mkhwebane is challenging the Public Protector of South Africa’s (PPSA) refusal to pay out her R10 million gratuity after she was impeached by the National Assembly for misconduct and incompetence during her tenure.

‘Constitutional delinquency’

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.

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“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.

‘Not Robert Sobukwe’

Mkhwebane’s counsel, Advocate Dali Mpofu, on Monday made a lengthy argument, even likening Mkhwebane to Sobukwe in her struggle to obtain the gratuity.

However, Ngcukaitobi dismissed this comparison, arguing that Mkhwebane’s claims that the PPSA’s decision not to pay her the gratuity unfairly discriminated against her and violated her constitutional rights were unfounded.

“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.”

Ngcukaitobi told the Pretoria High Court that Mkhwebane quoted and relied on a repealed section of the Public Protector Act in her founding affidavit.

Misconduct

He said that Mkhwebane became notorious for misquoting laws when she was found guilty of misconduct and incompetence during her tenure. In the heads of argument, he noted that the findings against her were damning.

“The committee found that [Mkhwebane] failed to act impartially, had unlawfully received and perused classified information, had provided untruthful explanations on oath, had grossly overreached her powers, and had mismanaged the resources of the Office of the Public Protector by incurring extraordinary legal costs defending matters with little or no prospects of success.

“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,” Ngcukaitobi said.

Adverse findings

Ngcukaitobi said the PPSA was not being biased against 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.”

Advocate Terry Motau, representing National Assembly Speaker Thoko Didiza, presented several adverse findings made against Mkhwebane by the Section 194 Committee, which investigated her fitness to hold office.

These include secret meetings she allegedly held with the State Security Agency (SSA) and officials from Jacob Zuma’s presidency during her later invalidated investigation into the South African Reserve Bank, which she had unlawfully attempted to change.

There were also charges of misconduct in her investigations into the Vrede Dairy farm scandal, the Bankorp-CIEX matter, the CR17 campaign, and the so-called “rogue” intelligence unit within the South African Revenue Service, among others.

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