‘Difficult case for her to mount’ – Mkhwebane goes to court for R10m bonus

Former public protector Busisiwe Mkhwebane’s pursuit of a R10 million gratuity appears set to be an uphill struggle before it even begins, as challenges mount, including lack of support from the office of the Public Protector SA and the contentious circumstances surrounding her dismissal.

Following her impeachment through a vote in parliament just weeks before her term was set to expire on 14 October, 2023, Mkhwebane lodged an urgent application with the High Court in Pretoria to declare aspects of her former office’s refusal to pay her R10 million bonus unconstitutional and invalid.

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However, political analyst Ralph Mathekga said the case was a significant test regarding entitlement to gratuity after dismissal.

This was especially so as her employer was unhappy with her conduct while in the post and the head of Public Protector SA’s office, Kholeka Gcaleka, had distanced the office from the litigation.

The office confirmed it had received Mkhwebane’s court papers and would attend to them accordingly, but added that “no further comment will be made regarding this matter”.

Case raises questions

Mathekga noted the complexities surrounding the term “gratuity” and raised questions about whether dismissal due to misconduct affects eligibility for such benefits.

“The case is going to be an interesting test regarding whether one is still entitled to gratuity, even if one is dismissed from the job.

“The meaning of gratuity is very important here,” he said. “Is there anyone gracious about her service?

“I think the answer is no, at least not her employer from which she’s looking for this gratuity.”

Mkhwebane is now a member of parliament for the Economic Freedom Fighters. In a recent social media post, Mkhwebane confirmed her decision to pursue legal action after receiving no response to her demand for payment.

The application, filed on 1 March, 2024, outlines various grounds for relief, including the declaration of certain conditions related to gratuity as unconstitutional and invalid.

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Mkhwebane argued for “just and equitable remedies” for the payment of the gratuity, emphasising the precedent set when previous public protectors received similar benefits upon leaving office.

The application also highlights alleged delays in response from her former employer and an alleged history of malicious conduct dating back to 2022, further fuelling the legal battle.

“I have lodged the application for urgent relief seeking the payment of the relevant gratuity owed to me,” Mkhwebane stated in her post on X.

“It is essential to address the unreasonable delay and the pattern of malicious conduct in responding to my request for payment.”

Mkhwebane claimed that the respondents, who include the president and the speaker of the National Assembly, have acted maliciously in respect of the unreasonable amount of time taken for them to respond to her demand to be paid.

‘Going to be a difficult case’

“It’s going to be a difficult case for her to mount,” said Mathekga.

“Given the fact she has been dismissed because of misconduct and fitness to occupy office, it is not an honourable discharge for which someone can claim this kind of gratuity.

“But then again, it is going to be a test case.”

He noted as the proceedings unfold, attention would likely turn to the implications for individuals dismissed from public office due to misconduct and their entitlements under the law.

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Legal analyst Mpho Sehume emphasised the inherent uncertainty surrounding legal outcomes and the importance of considering the specific facts of Mkhwebane’s case and the interpretation of relevant laws by the presiding judge(s).

While acknowledging the merit of Mkhwebane’s arguments, the analyst highlighted potential counterarguments, particularly regarding the circumstances of her dismissal and the “principle of honouring gratuity for honourable service”.

Sehume noted the court would meticulously assess all the evidence and legal arguments before rendering a verdict.