Removal disqualifies Mkhwebane from gratuity payment, court hears

No legislation or provision entitles former public protector Busisiwe Mkhwebane to receive a large gratuity payment as she was removed from office and did not vacate the position as required by the Public Protector Act, the Pretoria high court heard on Tuesday.

Mkhwebane applied to the high court, insisting she was entitled to the R10m gratuity payment given to public protectors once they vacate office after the National Assembly impeached her.

Mkhwebane underwent a section 194 hearing that found her guilty of misconduct and incompetence.

In response to her arguments presented by advocate Dali Mpofu on Monday, advocate Thembeka Ngcukaitobi, on behalf of the office of the public protector, said Mkhwebane did not meet the requirements for the gratuity payment.

The gratuity is payable to those who have vacated office but not those who are impeached, according to the public protector. The constitution says that the public protector holds office for a non-renewable period of seven years.

The Public Protector Act and the conditions of service offer gratuitous payment when a public protector vacates office, which can be summarised under four categories.

The first is when a public protector vacates office once the seven-year term is complete.

The second is when the National Assembly permits a public protector to leave office due to incapacity or ill health before the term lapses.

The third form of vacating office was if a public protector resigns, and the last was through death, Ngcukaitobi argued.

“The condition for the payment [of gratuity] is vacation, and vacation is a term recognised by law. What is clear about this idea of office vacation is that it is different from removal. Removal is not included in vacation and this was not an error because vacation was not dealt with in the Public Protector Act, but dealt with in the rules.”

On Monday Mpofu argued that removing Mkhwebane did not disqualify her from receiving the gratuity payment.

He argued her removal was irrelevant and she was entitled to the R10m payout despite being impeached for misconduct and incompetence.

Mkhwebane was impeached in September 2023 when 318 members of the National Assembly voted for her removal after an extensive investigation and hours of testimony into claims of misconduct and incompetence.

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