Mkhwebane wants court to declare non-payment of gratuity unlawful

Former Public Protector advocate Busisiwe Mkhwebane. | Henk Kruger Independent Newspapers

Former Public Protector advocate Busisiwe Mkhwebane. | Henk Kruger Independent Newspapers

Published Mar 5, 2024


Former public protector and EFF MP, Advocate Busisiwe Mkhwebane has taken the battle for her R10 million gratuity to the courts.

On Friday, Mkhwebane who was impeached through a vote in Parliament just weeks before her term was set to expire, lodged an urgent application with the Gauteng High Court, Pretoria, to declare aspects of the refusal by her former office to pay her R10 million pension declared unconstitutional and invalid.

In September, following a parliamentary inquiry into her fitness to hold office, Mkhwebane was impeached through a vote by ANC and DA MPs who voted for her removal from office.

The EFF and the ATM were among the parties that voted against the motion, with a total of 318 MPs voting in favour of her removal.

Mkhwebane insists that there is no basis for the Office of the Public Protector to refuse to pay her the gratuity, arguing that the Constitution is clear on what happens when the president is impeached, but is silent when it comes to the removal of judges and heads of Chapter 9 institutions.

On Monday, Mkhwebane confirmed having taken the matter up through the courts, “My application lodged on 1 March 2024 seeks for urgent relief to: Declare unconstitutionality and invalidity of certain conditions and seek just and equitable remedy for the payment of relevant gratuity.”

She also wanted the courts to declare certain conditions pertaining to the public protector, illegal.

“Alternatively, seek an order to declare certain Public Protector Service Conditions illegal. Seek relief in the form of setting aside the impugned decision and obtaining just and equitable remedy for the payment of the gratuity. In a further alternative, seek a stand-alone order reviewing and setting aside the impugned decision of the respondents to decline the request for payment of the gratuity,” she said.

Furthermore, Mkhwebane wants the court to decide on some of the outstanding matters as well as legal provisions on the payment of gratuity.

“(The court must) address the mistaken belief of the respondents regarding the legal provisions for the payment of the gratuity, anticipated opposition, and the request for punitive order of costs if there is opposition.

“Address the unreasonable amount of time taken to receive a response and the pattern of malicious conduct. The application highlights the extended delay in receiving a response from the first and/or second respondents and the history of malicious conduct dating back to May/June 2022 as additional grounds for the punitive order being sought.

“It also emphasises that public administration must be governed by a high standard of professional ethics, fairness, and absence of bias, as prescribed by Section 195,” she said.

The Star

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