Mkhwebane's impeachment is 'legally' irrelevant to her R10m ...

Legally speaking, the outcome of the Section 194 parliamentary inquiry that found then Public Protector Busisiwe Mkhwebane incompetent had nothing to do with her entitlement to a R10-million gratuity, advocate Dali Mpofu SC argued on Monday on behalf of Mkhwebane.

Mpofu was appearing in the North Gauteng High Court in Pretoria at the commencement of Mkhwebane’s urgent application against the Office of the Public Protector, which she believes should have paid her the gratuity, which was part of her job package.

In February, Mkhwebane received a letter from the legal representatives of her successor, Kholeka Gcaleka, informing her of the decision not to pay out her gratuity principally because she had not left the job of her “own volition” but after the adoption of a removal motion in terms of section 194 of the Constitution, followed by a compulsory letter of removal sent by President Cyril Ramaphosa.

Gcaleka said the gratuity was discretionary.

This decision, according to Mpofu, was “clearly illegal and inconsistent with the Constitution”. It was also irreconcilable with the relevant provisions of her employment contract, he said.

Mkhwebane did not finish her term following a vote by Parliament on the recommendation of the lengthy and costly multiparty Section 194 inquiry, which found her guilty of incompetence and misconduct and recommended her removal from office, weeks before she was due to complete her term.

Read more: Long road to impeachment: Mkhwebane is guilty as charged – here’s a breakdown of the damning findings

On Monday, Mpofu spent hours arguing the merits of Mkhwebane’s case.

“The Conditions of Service document does not anywhere state that a person who has been removed from office of Public Protector should not be paid her/his gratuity, nor does the Constitution or any other legislation. On the contrary and upon a proper interpretation of the document, it is in favour of such payment being made.”

Mpofu said that Gcaleka’s office took “irrelevant considerations” to arrive at a decision that Mkhwebane had not been entitled to the gratuity.

The first consideration, according to Mpofu, was that Mkhwebane did not vacate the office of her own volition, “That’s completely irrelevant. There is nothing in the legal framework about volition.

“The second one relates to the manufactured reason that came later, which is the one about misconduct and incompetence,” Mpofu argued.

He gave several examples to illustrate this point, including that the Basic Conditions of Employment Act stipulates that when an individual’s contract has been terminated, they must be paid their remuneration within seven days.

“It doesn’t say if it’s terminated and you have killed a million people or whatever… There is no such qualification.”

Judge Omphemetse Mook quizzed Mpofu: “You are submitting, as I understand, that whatever happened in the Section 194 process has got nothing to do with the applicant’s entitlement  to her gratuity?”

Mpofu responded, “Legally speaking, yes.”

Read more: Busisiwe Mkhwebane fights her successor for R10m ‘gratuity’

Delivering his heads of argument, Mpofu referred to a government circular which gives non-returning councillors a once-off gratuity payment. This came after many councillors had their property when they left office and some were unable to service their debts.

“It will be observed that nowhere in the document is there any mention of disqualifications or forfeitures based on leaving ‘without blemish’ or ‘of own volition’,” argued Mpofu.

In pursuing the case, Mkhwebane has pleaded poverty, claiming she was struggling to make ends meet as she was now earning significantly less in her new role as an MP for the EFF.

Even though Mkhwebane still had the luxury of a decent salary, Mpofu argued that: “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.”

Mkhwebane seeks the following remedies: “A form of a declarator of unconstitutionality and invalidity of the conduct of the first and/or second respondents in terms of section 172(1)(a) of the Constitution for their refusal to pay her gratuity.

“Second, the applicant seeks an order that the Honourable Court grant just and equitable remedies including but not limited to severance and/or ordering the first and second respondents to take the necessary steps forthwith to facilitate the payment of the relevant gratuity.”

Should the court rule that Mkhwebane forfeits only a portion of the millions due to her, it would not be the first time that a former Public Protector has had to forfeit a portion of their “gratuity”, albeit the previous matter involving Thuli Madonsela occurred in vastly different circumstances.

In 2016, after Madonsela completed her term of office, exiting with a bang and the State Capture report which led to the Zondo Commission, Mkhwebane arbitrarily deducted R470,000 from Madonsela’s R4-million gratuity for repairs to an official vehicle paid for by the office. This was after Madonsela’s son, who was 22 at the time, took his mom’s X6 BMW out on a joy ride without her permission and crashed it.

Read more: Public Protector clams up on decision to withhold R10m payout to Busisiwe Mkhwebane

Mkhwebane’s case continues on Tuesday. Advocate Tembeka Ngcukaitobi, acting on behalf of the Office of the Public Protector, is expected to present the case against the former Public Protector’s claim that she is entitled to the R10-million. DM