By Bernadette Wicks.
“It would be absurd for an employer to be expected to pay a gratuity, being a token of appreciation, to an employee who left office in disgrace”.
These were the words of Judge Omphemetse Mooki, sitting in Pretoria, when he dismissed impeached public protector Busisiwe Mkhwebane’s bid to force her ex-employer to fork out an estimated R10 million gratuity, in the Gauteng High Court in Pretoria on Wednesday.
While previous public protectors have received an end-of-service gratuity upon their exit from office, Mkhwebane was refused as much by the Office of the Public Protector because she was removed from office for misconduct and incompetence before she could see out her term.
Mkhwebane filed an urgent application challenging the decision in March but it was subsequently removed from the urgent roll and sent to the deputy judge president to consider where to place the case.
It was then re-enrolled and heard in August by Judge Mooki, who delivered his ruling on Wednesday.
Relief not competent
Mkhwebane wanted the conduct of the Office of the Public Protector and current incumbent Kholeka Gcaleka declared unconstitutional and invalid but Mooki in his judgment said the relief was “not competent”.
At the centre of the case was the interpretation of section 3.1 of the Conditions of Service which provides for the payment of a gratuity “on vacation of office”.
“The parties agree that the Conditions of Service is a contractual framework applicable when the applicant held office as public protector. The dispute concerns the interpretation of that contract. The interpretation of a contract is not, without more, a constitutional matter. This is only the case where the claim advanced requires consideration and application of some constitutional rule or principle in the process of deciding a matter,” Mooki said.
“There is no constitutional rule or principle that merits attention in interpreting clause 3.1 of the Conditions of Service,” the judge said – adding that “an issue does not become a constitutional matter merely because a litigant calls it one or where the issue is dressed up in conditional garb”.
He also found Mkhwebane’s claim that her ex-office had infringed several provisions of the Constitution to be “non-specific” and that she had failed to lay a basis for the relief sought.
Alternative relief
In the alternative, Mkhwebane had wanted the decision to refuse her the gratuity reviewed under the Promotion of Administrative Justice Act (PAJA) but in order to succeed with that approach, she would have had to show that it was administrative action – and the court found she had not.
“She had to show that the decision pertained to the exercise for a power and/or the exercise of a function in terms of the Constitution… a decision consequent to a contract of employment does not constitute administrative action’ for the purposes of section 1(a) of PAJA,” Mooki said.
Mkhwebane in court argued that she had not been afforded an opportunity to be heard before the Public Protector’s Office took the decision and that the office was in breach of the Basic Conditions of Employment Act’s provisions that “an employer must pay remuneration not later than seven days after the completion of the period for which the remuneration is payable; or the termination of the contract of employment”.
Again, however, the court on Wednesday found with the respondents that she was not entitled to such a hearing and that her remuneration did not include the gratuity.
Finally, the court found that the phrase “on vacation of office” as it appeared in the Conditions of Service, did not cover removal from office and the application was dismissed with costs.