By Lehlohonolo Lehana.
Impeached former public protector Busisiwe Mkhwebane has instructed her lawyers to begin court proceedings against the Office of the Public Protector and Parliament over her R10 million gratuity.
Mkhwebane told City Press that she is taking the legal action after the Office of the Public Protector and Parliament failed to respond to her correspondence about the payments.
“It’s very clear that the Public Protector is entitled to a gratuity when vacating office, although it’s not clear how the Public Protector vacates office,” Mkhwebane said.
She also said the CEO of the Public Protector’s Office told her they were waiting for Parliament’s instruction on the payment of the benefits.
Parliament has said it is not responsible for the payments to the former public protector.
At the end of her term, Mkhwebane was entitled to a “gratuity” of about R10-million which comes as part of the job package.
Public Protector legal adviser Ndili Msoki said that conditions of service were determined by the Public Protector Act, passed in 1994, with the appointment of advocate Selby Baqwa in September 1995, and amended twice, in 1996 and 2002.
Mkhwebane’s salary of R2,316,919 took effect on 1 April 2020, as published in the Government Gazette’s proclamation notice 29 of 2021.
Conditions of employment make provision for a “gratuity” calculated “with the formula — D/7 x 2 x (E+3) x F, in which formula the factor: ‘D’ represents the salary (basic per annum) which at the time of his or her vacation of office was applicable to the office of the Public Protector; ‘E’ represents the period in years of his or her period in such office; ‘F’ represents the provision for the calculation of income tax calculated at a marginal rate of 40%”.
Former Public Protector advocate Lawrence Mushwana, on departure in 2009, received R6.8-million.
In 2017, when advocate Thuli Madonsela’s term of office ended, she received a R7.6-million “gratuity” of which she later repaid about R450,000 for damages to a state vehicle caused by her son in 2012.
The Office of the Public Protector has admitted to paying the Department of Public Works and Infrastructure R4-million for Mkhwebane’s irregular rental of first a home, then an apartment, in the Bryntirion Presidential Estate in Pretoria. She lived there throughout her tenure.
This is a perk to which Mkhwebane was not entitled and it was paid for with public funds.
Mkhwebane was fired one month before her seven-year tenure was due to have ended, denying her a gratuity of about R10 million that she would have received had she completed her term.
She has courted controversy ever since she took office in 2016, making a number of politically charged findings that have been overturned in the courts. The main opposition party, the Democratic Alliance, petitioned parliament to impeach her and President Cyril Ramaphosa suspended her in mid-2022 while legislators determined her fitness to continue in office.
The Office of the Public Protector is one of six constitutionally enshrined institutions that are tasked with supporting and defending democracy in South Africa. Its main brief is to protect the public from government maladministration and improper conduct by officials.
Former president Jacob Zuma appointed Mkhwebane to her post, in line with a recommendation from parliament. She replaced Madonsela, who gained widespread public trust after making a series of finding against Zuma and several other senior politicians implicated in graft and the misuse of public funds.