Johnathan Paoli
THE North Gauteng High Court has reserved judgement in the R10 million gratuity case of former Public Protector (PP) Busisiwe Mkhwebane.
Judge Omphemetse Mooki announced the decision on Tuesday and said he would deliver the ruling as soon as possible.
Mkhwebane had gone to court to challenge the decision by the office of the Public Protector of South Africa (PPSA) not to pay out her R10 million gratuity, following her impeachment by the National Assembly for misconduct and incompetence during her tenure.
Legal representation for the PPSA, Advocate Tembeka Ngcukaitobi argued that Mkhwebane’s impeachment in terms of section 194 of the Constitution, was the first time a President had removed the head of a chapter 9 institution.
Ngcukaitobi said in light of her removal, she was not entitled to the gratuity and that granting it to her would bring the institution into disrepute and set a bad precedent.
“It is an entirely legitimate constitutional purpose to say that as a matter of South African law, someone who has no respect for their oath of office should not get a gratuity,” he said.
He said that to grant Mkhwebane relief, would be tantamount to rewarding “constitutional delinquency”.
Legal representation for the former PP, Dali Mpofu, argued that Mkhwebane was being discriminated against, and that she was entitled to the payout in line with the Basic Conditions of Employment act.
Mpofu argued that Mkhwebane’s impeachment should not affect the payment, and that her service should be seen as an ordinary employment contract.
“The basic conditions of the Employment Act apply here because we know the Act applies to everyone except those people who are excluded from it such as members of the intelligence services,” he said.
Mpofu said what was crucial to this matter was whether a legal or rational explanation existed for the introduction of a forfeiture clause which would only entitle an individual to a gratuity if they are not found guilty of certain transgressions.
“You can’t just dream up a forfeiture clause as you go along every day you wake up. A forfeiture clause is what you call a penal provision, by definition. It’s a provision that introduces a penalty,” he said.
Mpofu highlighted her struggle to obtain the gratuity and compared her to struggle veteran Robert Sobukwe, and the manner in which new laws were invented in order to keep him behind bars, namely the Sobukwe Clause.
However, Ngcukaitobi dismissed the comparison and said that the decision to not pay the gratuity was not in violation of her rights or the constitution.
“Advocate Mkhwebane is not Robert Sobukwe. She is not getting the gratuity because the instrument does not permit the payment of a gratuity to a person removed from office for misconduct and incompetence,” he said.
He said the office’s decision was based on the facts of the investigations and not malice or unfair discrimination.
Mkhwebane has previously said that she is seeking the gratuity because she is allegedly struggling to make ends meet and earns significantly less in her new role as a member of parliament (MP) for the Economic Freedom Fighters (EFF).
She was impeached in September last year, following a section 194 committee finding her guilty of various instances of misconduct and incompetence, including secret meetings allegedly held with the State Security Agency (SSA) and officials from Jacob Zuma’s presidency.
In addition, allegations of misconduct have been made against her in terms of her investigations into the Vrede Dairy farm scandal, the Bankorp-CIEX matter, the CR17 campaign, and the invalidated investigation into the South African Reserve Bank, which she attempted to change.
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