By Setumo Stone
Setumo@sundayworld.co.za
Former public protector Busisiwe Mkhwebane has won the right to take her fight for a R10-million gratuity to the Supreme Court of Appeal (SCA) after the court agreed to hear her challenge against a Pretoria High Court ruling that rejected her claim.
The SCA in Bloemfontein granted Mkhwebane leave to appeal on July 31, 2026, setting aside the earlier refusal of her leave application and allowing her legal challenge over the
disputed payout to proceed.
The appeal will determine whether a public protector removed from office through
Parliament’s section 194 process can claim a financial benefit.
Mkhwebane is challenging the refusal to pay her gratuity after she was removed from
office on September 12, 2023, following Parliament’s impeachment process.
In her SCA papers, Mkhwebane says the dispute is about more than her personal claim; it raises wider constitutional questions about the treatment of benefits belonging to heads of Chapter 9 institutions.
She argues that the matter could affect future public protectors, the auditor-general and other constitutional office bearers.
The dispute centres on the interpretation of the Public Protector Service Conditions, specifically the meaning of “vacation of office” and whether that includes a person removed through a constitutional process.
Mkhwebane argues that her removal from office did not automatically cancel her right to the gratuity.
The respondents, including Public Protector Kholeka Gcaleka, oppose the appeal and argue that Mkhwebane is not entitled to the payment because she was removed from office for misconduct and incompetence.
In their answering affidavit, the respondents say Mkhwebane was removed by the president after Parliament found that she committed misconduct and was incompetent. They say she received the remuneration and benefits due to her but the additional gratuity was refused because there was no legal authority to pay it after her removal under section 194 of the Constitution.
The respondents argue that the Pretoria High Court was correct when it found that a public protector removed from office through impeachment had not “vacated” the office.
“The high court correctly determined that a public protector impeached and removed from office for misconduct and incompetence has not ‘vacated’ her office,” the respondents argue.
Their argument is that “vacation of office” refers to a normal departure from office and does not include removal after an impeachment process. They point to the wording of the ser-
vice conditions, arguing that gratuity payments apply where a public protector completes the seven-year term, leaves office early under recognised circumstances or dies while in office.
The respondents say the absence of a specific provision for a removed public protector shows that the benefit was not intended to apply in Mkhwebane’s case.
The state parties have also rejected Mkhwebane’s argument that the case has wider constitutional implications.
They argue that the matter is essentially a contractual dispute over the interpretation of
employment conditions and does not create a constitutional principle affecting other
Chapter 9 office bearers.
The respondents say Mkhwebane’s claim that the outcome could affect judges, public protectors, the auditor-general and other constitutional institutions is overstated.
The legal battle has moved through several courts.
The matter first went before the Pretoria High Court, which dismissed Mkhwebane’s application on October 9, 2024. The court found that the dispute was based mainly on the interpretation of her service conditions.
Mkhwebane later approached the Constitutional Court for direct access to appeal but the application was dismissed on May 23, 2025.
She then filed an application for leave to appeal in the Pretoria High Court but her condonation application for filing late was dismissed on April 15, 2026.
She subsequently approached the SCA in Bloemfontein, which has granted her leave to appeal.
- Former public protector Busisiwe Mkhwebane has been granted leave by the Supreme Court of Appeal (SCA) to appeal a Pretoria High Court ruling that rejected her claim for a R10-million gratuity.
- Mkhwebane was removed from office on September 12, 2023, after Parliament’s impeachment process and challenges that she is entitled to the gratuity despite her removal.
- The legal dispute hinges on whether a public protector removed through a constitutional process "vacated" the office under the Public Protector Service Conditions and is eligible for the gratuity.
- Respondents argue Mkhwebane is not entitled to the gratuity due to her removal for misconduct and incompetence and assert the gratuity applies only to those completing terms normally or leaving under recognized circumstances.
- The case has moved through multiple courts, with the Pretoria High Court dismissing her claim and the Constitutional Court rejecting direct appeal access before the SCA granted leave to appeal on July 31, 2026.
