Advocate Tembeka Ngcukaitobi SC insists that former public protector Busisiwe Mkhwebane’s dramatic exit from the office was reason enough for her not to receive a gratuity payment.
Ngcukaitobi was testifying in the Pretoria High Court on Tuesday about the payment of gratuity. He said gratuity to someone removed from office for misconduct and incompetence was not allowed.
Gratuity not part of payment package
He argued that gratuity was not included in the employer’s payment package. Neither was it similar to the 13th cheque, and should be treated as such.
“Removal from office is distinct from vacation of office. We make a point that payment of gratuity is a form or token of acknowledgment or appreciation of the public protector’s services above and beyond his or her salary and other allowances,” said Ngcukaitobi.
“In particular, it seems to deter the person occupying the office of the public protector from engaging in misconduct. Or acting in an incompetent manner,” he added.
Ngcukaitobi said the impeached public protector would have received her gratuity payment on two instances. That is if she vacated the office in good faith and had served her office to its expectations.
Instead, for the first time, Parliament voted for her impeachment in September 2023. This was for failing to observe basic fairness and transparency and acting far from her powers. Also failing to observe honesty in her applications to the court, amongst others.
Independent holder of office
Ngcukaitobi also argued that Mkhwebane was not an employee, but an independent holder of office.
He said the law also states that remuneration should be paid within seven days. This is seven days from vacation of office or termination of contract. But he also insisted that this was not inclusive of gratuity.
Ngcukaitobi described remuneration as a mere money for work exchange. He ousted Dali Mpofu, Mkhwebane’s legal representative, for his definition of gratuity as a tip.
“A gratuity is a stand-alone, with its conditions and a gratuity for removal of office for misconduct and incompetence is excluded intentionally and for good reasons,” said Ngcukaitobi.
“We then ask the question rhetorically, what is left of this case?”
