The Pretoria High Court has rejected former public protector Busisiwe Mkhwebane’s request for a R10-million gratuity payment from the Office of the Public Protector.
After President Cyril Ramaphosa removed Mkhwebane from her position in September 2023, a month before her term was up, she made a demand for the payment.
Having been found guilty of misconduct and incompetence to hold office, she became the first public protector to be impeached.
Kholeka Gcaleka, the current public protector, had contested her predecessor, arguing that the terms of service only permitted gratuities to be paid after the employee left their position, not when they were fired.
Gcaleka also maintained that no other instrument exists that permits the payment of a gratuity.
Mkhwebane, however, felt that the respondents in this case — Ramaposa, Gcaleka, Minister of Finance Enoch Godongwana, and Speaker of the National Assembly — had violated a mandamus directing the payment of gratuity or an order for specific performance.
Token of appreciation
Judge Omphemetse Mooki came to the conclusion that a gratuity was not intended for a person who had been ousted from office.
“The nature of a gratuity also leads to the conclusion that ‘on vacation of office’ and ‘removal from office’ in the context of the conditions of service are not synonymous,” said Mooki.
“Gratuity is to be understood as the concept generally used in an employment context.
“I agree with the respondents that a gratuity is a token of appreciation as expressed by an employer towards an employee. This view has a bearing on the expression ‘on vacation of office’.”
He said there is much that is regrettable in what Mkhwebane said about the respondents.
Mooki clarified that Mkhwebane’s grave accusations against the public protector’s office and Gcaleka in her capacity as public protector were unsupported by enough evidence.
He maintained that she had made unnecessary and unjustified remarks to the National Assembly about the circumstances surrounding her removal from office.
“I have determined, however, that the court will not order costs on a punitive basis.”
