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Mkhwebane heads to high court to challenge nonpayment of gratuity

Andisiwe Makinana Political correspondent
Former public protector Busisiwe Mkhwebane is heading to court to get the payout she believes she deserves. File photo.
Former public protector Busisiwe Mkhwebane is heading to court to get the payout she believes she deserves. File photo.
Image: Lubabalo Lesolle

Former public protector Busisiwe Mkhwebane says she will challenge the Public Protector Office’s decision not to pay out her end of term gratuity.

Mkhwebane says the decision is unlawful and unconstitutional.

She said despite numerous attempts by her legal representatives to engage with the public protector regarding the gratuity stipulated in her employment conditions of service, their enquiries have been met with silence.

It emerged last week that Mkhwebane's successor, Kholeka Gcaleka, had determined that Mkhwebane does not qualify for the payment because of the circumstances in which she left.

Mkhwebane was impeached by parliament last year, rendering her ineligible to receive the payout, the protector’s office says. She was removed as the public protector in September by the National Assembly, with 318 MPs voting for her removal against 43 who voted to keep her. One MP abstained.

President Cyril Ramaphosa officially removed her a day later.

She has since joined the EFF as an MP.

“This decision is wholly unfounded and introduces a new punitive condition which has no basis in my employment contract. This conduct is not only unlawful but also unconstitutional,” said Mkhwebane on Tuesday.

“I am entitled to equal treatment, dignity, fair labour practices and respect, as is every other individual.”

Mkhwebane said the heart of the matter revolved around the interpretation of the phrase “vacation of office” in her employment condition of service, in conjunction with relevant legislation and the constitution.

“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.

“Regrettably, after seeking legal counsel, there is no alternative but to seek recourse through the judicial system. 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.”

Mkhwebane said the decision to take the legal route has not been taken lightly, but in the pursuit of upholding the principles of fairness, justice and the protection of the rights of every individual under the law.

“I trust that the judicial process will serve as a fair and impartial platform to resolve this matter.”

TimesLIVE was told that the Public Protector Office communicated its decision to Mkhwebane last week.

Some of the reasons are said to be that the law entitles only those who have left the post of public protector of their own volition or at the end of their term may receive the payment, and not when they have been removed.

The office of the public protector is said to have told Mkhwebane it cannot find a law in either the constitution or the Public Protector Act under which it can justify making the payment.