Illustrative image | Former Public Protector Busisiwe Mkhwebane (left) and her successor Kholeka Gcaleka. (Photos: Gallo Images / Brenton Geach | Gallo Images / Papi Morake | Leila Dougan) 
Max Matavire, writing in City Press on Sunday, said that the impeached Public Protector Busisiwe Mkhwebane had informed the paper that she had instructed her legal team to institute court proceedings against Public Protector Kholeka Gcaleka.
Mkhwebane told Matavire that in her world, “it is very clear that the Public Protector is entitled to a gratuity when vacating office although it is not clear how the Public Protector vacates office”.
While it is evident to the rest of South Africa how she vacated office, it appears Mkhwebane is in denial.
She did not finish her term following a vote by Parliament on the recommendation of a lengthy and costly multiparty Section 194 inquiry which found her guilty of incompetence and misconduct and recommended her removal from office.
Read more in Daily Maverick: Long road to impeachment: Mkhwebane is guilty as charged – here’s a breakdown of the damning findings
After the Public Protector’s office pointed Mkhwebane to Parliament when she first knocked on the door for her pension, Mkhwebane asked her legal team in December to write a letter of demand to Gcaleka.
The letter went into a void, she complained. This was all unnecessary, she told City Press, if the matter were just resolved “amicably”.
The law, according to Mkhwebane, entitles public servants “even after being dismissed … to a certain portion of their benefits”.
This is not the first occasion that a former Public Protector has had to forfeit a portion of their “gratuity”, albeit the previous matter involving Thuli Madonsela occurred in vastly different circumstances.
After Madonsela completed her term of office, exiting with a bang and the State Capture report which led to the Zondo Commission, Mkhwebane arbitrarily deducted an amount from Madonsela’s payout.
Back in 2016, R470,000 was docked from Madonsela’s R4-million “gratuity” for repairs to an official vehicle paid for by the office.
While she was PP, Madonsela’s son Wanto, who was 22 at the time, took his mom’s X6 BMW out on a joy ride without her permission and pranged it.
Madonsela responded to Mkhwebane in a letter in 2017 stating that she had taken legal advice at the time which found that she had not been responsible as her son had taken the car without her permission. The Auditor-General’s office had agreed with this, Madonsela noted.
But paying back the money, she said, was the right thing to do.
Furthermore, said Madonsela, “I have also decided that, in the interest of closure and peace, you are authorised ex post facto to keep the amount unilaterally deducted from my gratuity for the use of the Mercedes that I continued to use during the VIP cooling period in accordance with the letter.”
Good for the goose
Madonsela maintained that she had never “acted in contravention of any Public Protector policies, applicable government prescripts and general laws of the land required of me regarding the accident. My legal stance accordingly remains unchanged.”
In a way, Mkhwebane has opened the way for the withholding of her own gratuity, calculated to be around R10-million.
In fact, Mkhwebane owes the public purse R4-million which her office paid to the Department of Public Works for her rental of a luxury home in the Bryntirion Ministerial Estate in Pretoria. Mkwebane spent almost her entire tenure living among the individuals over whom she had oversight.
Read more in Daily Maverick: Busisiwe Mkhwebane’s rent-free days in lush ministerial estate are over
On the chances of Mkhwebane accomplishing anything through her current court foray, constitutional law expert Professor Pierre de Vos opined that she was not entitled to her gratuity.
“This isn’t a constitutional matter, but something to be determined by the conditions of service agreement concluded when she took office.”
From a legal perspective, said De Vos, it was “clear as can be. It provides for a gratuity if she completes her term and for payment of minor benefits, even if she is impeached, but makes clear she is not entitled to a gratuity if she is removed from office before her term ends.” DM