Former public protector Busisiwe Mkhwebane if she will get the R10m gratuity she claims she is entitled to. File
Former public protector Busisiwe Mkhwebane will on Wednesday know whether she is entitled to the R10-million gratuity payment which has been the subject of a fierce legal battle between her and her former office.
The Gauteng High Court, Pretoria will deliver the judgment early in the morning after Mkhwebane turned to the court to compel the Office of the Public Protector to pay the R10 million gratuity she claims she is entitled to.
According to Mkhwebane, the payment formed part of her remuneration package.
Mkhwebane's counsel, Dali Mpofu, argued that she was entitled to the gratuity payment, and the fact that the parliamentary inquiry made findings against her, had nothing to do with her right to this payment.
Her application was fiercely opposed by the Office of the Public Protector, which said there is no legal basis on which she is entitled to receive a gratuity payment as she was removed from office before her term expired.
Advocate Tembeka Ngcukaitobi told Judge Omphemetse Mooki that Mkhwebane did not vacate her office after completing her term, nor did she resign. She was forced out after she was found guilty of misconduct and incompetence.
She left her office a month before her seven-year term expired. There is no legal basis for her entitlement to gratuity payment," he said.
Ngcukaitobi argued that there are good reasons for the payment of gratuity to be excluded if a person has been removed from office. He said gratuity has nothing to do with her payment package, but is a discretionary payment for work well done.
He argued at length that she did not vacate the office on her own, but she was forced to vacate the office. Thus, following the resolution by the National Assembly and subsequently by President Cyril Ramaphosa, she is not entitled to a gratuity, he said.
He said in a letter sent to her by the current public protector, Kholeka Gcaleka, in February, in response to her demand for gratuity, it was made clear that she was removed from office and that her demands can thus not be met, as the gratuity is discretional.
Gratuity is not something you can demand as a right, Ngcukaitobi said. He explained that it is not a salary or an allowance to which she has a right in terms of her service contract.
He said it is up to the discretion of an employer whether gratuity is payable or not.The conditions for gratuity is a vacation of office, not a removal from office due to misconduct and incapacity findings, he said.
Mpofu, during his argument, said the conditions of service document does not state that a person who has been removed from office should not be paid gratuity, nor does the Constitution or other legislation.
Nothing in the legal framework prevents a person who did not vacate office due to their own accord from receiving gratuity, he said.
Mpofu said denying her this payment is "cruel, arbitrary and degrading", and that it went against the doctrine of ubuntu.
Mpofu argued that his client was being severely prejudiced by the conduct of her previous office. He said she needed the money, among others, to pursue further legal proceedings.
Pretoria News
zelda.venter@inl.co.za