Ngcukaitobi says Mkhwebane 'not entitled to R10m gratuity'

There is no legal basis on which former public protector Busisiwe Mkhwebane is entitled to receive a gratuity payment as she was removed from office before her term expired, advocate Tembeka Ngcukaitobi on Tuesday argued on behalf of the Office of the Public Protector (OPP).

Mkhwebane turned to the Gauteng High Court, Pretoria, for the OPP to pay the R10 million gratuity she claims she is entitled to.

But 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 why the payment of gratuity is excluded if a person has been removed from office.

Mkhwebane's counsel, Dali Mpofu, earlier 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.

According to Mkhwebane, the payment formed part of her remuneration package.

But Ngcukaitobi said it 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 removed.

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, and not an obligation.

Mkhwebane maintained that she had vacated her office, he said, but she did not, because to vacate means to finish one's term of employment. Ngcukaitobi said Parliament could only allow her to vacate beforehand due to ill health, or she could have indicated that she was resigning, but then she had to give three months notice.

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.

During earlier proceedings, 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.

Mkhwebane is now a member of the EFF in the National Assembly. She was sworn in as an MP a week after her removal from office in October last year.