Impeached public protector Busisiwe Mkhwebane “can hardly make ends meet” on her MP's salary — “considering the drastic reduction in my monthly income of the preceding seven years”.
Her term of office as a parliamentarian may be coming to an end and she has “no guaranteed source of income” beyond the upcoming national elections, she said in court papers.
In 2023, ordinary MPs were earning about R1.2m a year.
Mkhwebane was hopeful that her case before the Pretoria high court, which was filed last week, will be deemed as urgent, she said in her affidavit.
She wants the court to order the office of the public protector to pay her the gratuity she says is owed to her, which is estimated to be about R10m.
The gratuity for public protectors is, in terms of service conditions, payable “on vacation of office”.
After Mkhwebane’s attorneys wrote to incumbent public protector Kholeka Gcaleka demanding the gratuity, attorneys for the public protector’s office responded that they could not give it to her.
“Your client was removed as the public protector ... your client did not vacate office of her own volition,” said the attorneys' letter.
“The conditions of service only authorise the payment of a gratuity when the incumbent has ‘vacated’ office, not when the incumbent is removed from office.”
There was no lawful authority the public protector’s office was aware of that allowed for the payment of a gratuity when a public protector is impeached, it added.
But in her affidavit, Mkhwebane says this is a wrong reading of the service conditions. She quotes the Public Protector Act as saying that the remuneration of the public protector cannot be reduced and that the terms of her employment may not be adversely altered.
The respondents were not entitled to introduce a new standard of ‘own volition’ to the notion of vacation of office. To do so is an act of bad faith
— Former public protector Busisiwe Mkhwebane in court papers
When it comes to impeaching the president, the constitution expressly says the president may not receive any benefits upon impeachment, she said. But it “remained silent” on this aspect when it comes to the heads of chapter 9 institutions, such as the public protector.
This “clearly means that in the case of the removal of the latter, no forfeiture of benefits follows from the removal”, she said.
If the court disagreed with her interpretation, then the court should strike down the relevant clause in the conditions of service as invalid because it is “offensive to the legal convictions of the community”, she said.
“In the specific circumstances of this case ... it would be unjust and unfair to give recognition to and/or enforce the said clause. In particular the respondents were not entitled to introduce a new standard of ‘own volition’ to the notion of vacation of office. To do so is an act of bad faith.”
Mkhwebane said if the office of the public protector and Gcaleka oppose her application, she will seek a punitive costs order against them. Her grounds would be that their failure to pay “will not have been borne out of a genuine misinterpretation of the law but suspected vindictiveness and malice”.
She said when she started enquiring about the gratuity, from November last year, Gcaleka and her office “adopted a lackadaisical approach and practically gave me the proverbial cold shoulder until very recently”.
When they eventually refused, this was “not completely unexpected, given the long pattern of abusive, malicious, vindictive and illegal behaviour”. But it “came as a shock to me both from an emotional, human rights and financial point of view”.
Mkhwebane said it would be “greatly onerous” to her and her family if her case was not treated urgently.
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