By Lehlohonolo Lehana.
Advocate Tembeka Ngcukaitobi SC insists that former public protector Busisiwe Mkhwebane’s exit from the office was reason enough for her not to receive a gratuity payment of R10 million.
Ngcukaitobi was testifying in the Pretoria High Court on Tuesday about the payment of gratuity. He said gratuity to someone removed from office for misconduct and incompetence was not allowed.
Mkhwebane was impeached from office last year for misconduct and incompetence following a Section 194 parliamentary inquiry.
Ngcukaitobi argued that Mkhwebane was the only Public Protector to be impeached for misconduct and incompetence and was not in the same position as other Public Protectors.
Giving her the payment would set a bad precedent, said Ngcukaitobi.
“What you have is a reward for constitutional delinquency. And this, I’m afraid, my Lord, is the big elephant in the room that this case, really what it is about, is asking the judge to be party to a reward for constitutional delinquency.”
Ngcukaitobi argued that Mkhwebane did not meet the requirements for a gratuity payment because she had not left office as required by the Public Protector Act, but was removed on grounds of misconduct.
He cited four categories under the Public Protector Act and conditions of service in which a gratuity payment is made when a Public Protector leaves office.
The first category refers to a Public Protector leaving office upon completion of their seven-year term. The second refers to incapacity or ill-health where the National Assembly allows the Public Protector to leave office before the end of their term. The third refers to resignation for various reasons. The last is through death.
Mkhwebane, however, did not leave on any such terms. She was removed through a vote by Parliament the recommendation of the lengthy and costly multiparty Section 194 inquiry, which found her guilty of incompetence and misconduct and recommended her removal from office, weeks before she was due to complete her term.
Which other Public Protector in the history of the Office of the Public Protector has ever had these findings made against them?” argued Ngcukaitobi
He maintained that the previous Public Protectors received a gratuity because they left office after serving the full seven-year term. “They were also deemed, on discretion, suitable for such payment. There is no unfair or irrational differentiation.”
The Office of the Public Protector wants the court to dismiss Mkhwebane’s application with costs. It also wants Mkhwebane to be ordered to pay punitive costs for the “personal attacks, and unwarranted and unsubstantiated allegations directed at the second respondent [Public Protector Kholeka Gcaleka] and the officials of the Office of the Public Protector”, according to court documents.
Judge Omphemetse Mooki reserved judgment in the matter.
“The court will reserve judgment, and I intend to deliver that judgment as quickly as is prudent to do so and I do want to thank the court staff for obliging the court staff to sit as late as they did,” said Mooki.