Mkhwebane’s court battle over gratuity millions will provide clarity: Gcaleka

Public protector Kholeka Gcaleka believes a court challenge by her former boss Busisiwe Mkhwebane over nonpayment of a multimillion-rand gratuity will help clarify a legal conundrum of whether an impeached head of the institution is entitled to the money. 

Mkhwebane was fired by President Cyril Ramaphosa on September 13, two days after parliament voted in support of the section 194 inquiry report that recommended her removal based on its findings of misconduct and incompetence.

Soon after she was fired, debate started on whether she was entitled to a one-off gratuity given to public protectors at the end of the seven-year term, estimated to be about R10m. Mkhwebane is the first public protector to be impeached and her removal has become a case study for the legal fraternity.

After five months of mulling over the dilemma, the institution told Mkhwebane last week she would not be paid the money. Gcaleka said the public protector office relied on the constitution in taking the decision not to pay Mkhwebane. 

While the constitution states the public protector may be removed from office on grounds of misconduct, incapacity or incompetence, it does not stipulate what happens to the gratuity if the individual is removed. 

Gcaleka said a court judgment in Mkhwebane’s legal challenge will be crucial in determining what happens to a gratuity payment when a public protector is fired.

“The institution came to a decision that there is no prescript which refers to removal from office. We must be very clear this is unprecedented and probably indeed in exercising her right, that is what is required so that there is clarity in law in this particular issue,” Gcaleka said in an interview with Newzroom Afrika. 

Mkhwebane described the move by the office as “unconstitutional” saying she would legally challenge it.

“Last week, the public protector publicly announced her decision to deny the stipulated gratuity, citing the reason that I did not vacate my office of my own volition. This decision is wholly unfounded and introduces a new punitive condition which has no basis in my employment contract. I am entitled to equal treatment, dignity, fair labour practices and respect, as is every other individual,” she said. 

“It is noteworthy to mention that while the constitution outlines the forfeiture of benefits for the impeachment or removal of the president from office under specific circumstances, it is silent on any forfeiture of benefits in the removal of judges or heads of Chapter 9 institutions. 

“A legal challenge will be imminently filed in the high court to address the interpretation of the employment conditions of service, relevant legislation and the constitution by the public protector.” 

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