Former public protector Busisiwe Mkhwebane has dragged her successor, Kholeka Gcaleka, to the Pretoria High Court to demand her gratuity payment.
Mkhwebane was impeached by Parliament for incompetence and misconduct in September 2023.
She was the first public protector to be forced out of office by the National Assembly. The National Assembly voted for her impeachment.
Benefit similar to that of a judge
Dali Mpofu, Mkhwebane’s legal representative, said his client’s gratuity was similar to that of a person holding the position of judge.
He said Section 6 of the Judges Remuneration and Conditions of Employment clarified that this gratuity should be paid once the person leaves the office.
Mpofu indicated that this section made it a legal right that Mkhwebane should receive her gratuity.
“It does not say that a judge must get that gratuity if he behaves well or if he turns down certain judgements,” said Mpofu.
“It simply says that gratuity ‘shall’ be paid and that’s it. Anyone who can argue that gratuity does not create at least a legal obligation on the state, which then has a corresponding legal right on the part of the judge, will be really gilding the lily,” Mpofu added.
Not entitled to gratuity
Gcaleka, the second respondent in the matter, said Mkhwebane was not entitled to the gratuity considering the details leading to her removal from the office.
She said Mkhwebane had a huge responsibility to obey the law because she administered it.
“The applicant has no legal entitlement to gratuity. In fact, a gratuity payment is not a legal right at all. The Constitution does not provide that the public protector is entitled to a gratuity upon removal from office,” reads the affidavit.
“Vacation of office is different from removal from the office. Had she vacated the office without blemish, the applicant would have been considered for gratuity, although she would not be legally entitled to it,” reads the affidavit in part.
Gcaleka described gratuity as a discretionary payment made by the state in recognition of good service under the law.
