It could only be in some sort of dystopian world in which a person who has been disgracefully dismissed from high office by way of impeachment would still expect to be paid out a gratuity that is meant to be an acknowledgement of “a job well done”.
So the mind boggles at how disgraced former public protector Busisiwe Mkhwebane would mount a legal challenge against her not getting a gratuity to the tune of R10-million of taxpayers’ money for doing what can only be considered shoddy work during her tenure.
This is a far cry from her predecessor Thuli Madonsela’s sterling record. Madonsela reinvigorated what was once a little-known institution into a formidable sword and shield in defence of the well-being of our people.
We may remember that Mkhwebane went from embarrassing case to embarrassing case in which her legal knowledge and understanding of the law and, alarmingly, the Constitution, were found to be lacking.
Read more: Mkhwebane’s impeachment is ‘legally’ irrelevant to her R10m gratuity claim, argues Dali Mpofu
In fact, I think it’s worth a reminder that the reason she was impeached is because a section 194 inquiry found that she was guilty of misconduct and incompetence.
The gravity of this cannot be overstated, especially because Mkhwebane acted against her mandate of being “a vanguard of South Africa’s constitutional democracy”.
In his defence of Mkhwebane, her lawyer, Dali Mpofu SC, argued that denying Mkhwebane her gratuity would be a “double punishment”, since she had already been dismissed from her job.
I found this assertion to be as audacious as it is ludicrous.
“To deny a person in the position of the applicant such entitlements would be arbitrary and nothing short of cruel and degrading double punishment. It plainly offends against the value of ubuntu,” proffered Mpofu, demonstrating what I have come to loathe as the bastardisation and abuse of the meaning and essence of “ubuntu”.
Read more: Unforgiven: Mkhwebane’s toxic legacy of holding on to power at any cost
Nowhere in ubuntu is there an assertion for excusing disgraceful conduct, and it is indeed regrettable that Mpofu chose to make such an association.
But beyond the legal argument and the merit of the legal battle, one would think it is common cause that we do not reward misconduct, and this case sets an important precedent in that regard.
The fact that the state has had to allocate resources that could have been used more constructively to the betterment of all South Africans should concern us all, but most of all it should shame Mkhwebane and her misguided supporters.
In fact, I was glad to hear that Tembeka Ngcukaitobi SC included this in his argument against Mkhwebane.
He stated that she “ought not to be paid a gratuity in light of the fact that she has been found guilty of misconduct and incompetence during her term of office by the Section 196 committee, and has received an extraordinary financial benefit from the Office of the Public Protector through the payment of her legal fees amounting to more than R10-million”.
So, to put things into perspective, she should actually be paying back the money that she has unduly spent defending the indefensible. DM
This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.
