Former public protector Busisiwe Mkhwebane. (Leila Dougan/Daily Maverick/Gallo Images)
Ousted former public protector Busisiwe Mkhwebane is pleading poverty in papers filed to the Pretoria high court to challenge the decision by her former office not to pay her a customary exit gratuity of R10 million.
Mkhwebane said as a fledgling opposition MP, she found herself in drastically reduced circumstances, and in doubt of a guaranteed income given that national elections are just two months away.
“I can hardly make ends meet considering the drastic reduction in my monthly income of the preceding seven years,” she wrote.
“In any event, my term of office as a parliamentarian will come to an end as of the end of May 2024, following the upcoming national elections. As matters currently stand, I will have no guaranteed source of income beyond that point.”
Mkhwebane was sworn in as an MP for the Economic Freedom Fighters in October last year, a month after the National Assembly voted by 318 to 43 votes to remove her from office for misconduct and incompetence.
She became public protector in mid-October 2016 and her impeachment came just weeks shy of the end of her seven-year term of office.
In her court papers, Mkhwebane submitted that the timing of the parliamentary vote was calculated to come before her term expired, because her political foes held the mistaken belief that this would in law deny her payment of a cash gratuity.
Her lawyers sent a letter to the office of the public protector in early December demanding that the gratuity be paid out within a week.
Last month, lawyers for the counsel for the public protector replied that she was not entitled to such, because she did not vacate the office but was removed. They said there was no provision in law for paying a gratuity to the head of a chapter nine institution whose term ended in this manner.
This is wrong in law, Mkhwebane argues in her court papers, because it goes against the provisions of the Public Protector Act, the Public Protector’s Service Conditions and section 32(3) of the Basic Conditions of Employment Act.
The latter states that an employer must pay due remuneration no later than seven days after the end of an employment period or the termination of an employment contract, she argued.
The failure to pay her a gratuity also pointed to a breach or at least misreading of 10 provisions of the Constitution, including the right to equality and dignity.
“The court will be invited to invoke values such as fairness, reasonableness, justice and ubuntu, the details and relevance of which, I am advised, will be further discussed during legal argument.”
But Mkhwebane stressed that she viewed the decision to withhold her gratuity, when all her predecessors were paid theirs, as unconstitutional particularly in that it was discriminatory and arbitrary.
“The mere fact that unlike me they vacated their office at the expiry of their terms does not provide sufficient justification for any differentiation in the circumstances,” she said.
She has filed the application on an urgent basis.
This was justified, she said, by the grievous nature of the denial of her rights and the evident malicious intent to cause her hardship “which comes with being unduly denied money which is due to me especially in these hard economic times”.
If she were wrong about malice, the respondents would not oppose her application, she continued. She is seeking a personal costs order against Kholeka Gcaleka, should the public protector oppose the application.
In that instance, Mkhwebane said, she would see the decision not to pay her gratuity as one merely founded in a bona fide misreading of the law.
But, she added, the history of how she came to be removed and the many months of wrangling over payment of her gratuity before the public protector made its position clear, suggested that the refusal was in fact malicious and vindictive.
Although not unexpected, the letter from the public protector’s lawyers came as a shock to her from an emotional, financial and human rights point of view.
The length of time Gcaleka took to reply to her demand “as well as the long pattern of other malicious conduct going as far back as May/June 2022 are some of the additional grounds which would justify the punitive costs order I pray for”.
This included, she said, Gcaleka’s “inexplicable, outrageous and clearly unlawful” decision during the section 194 process that led to her impeachment, to cut off funding from the office of the public protector for her legal representation.
Mkhwebane spent more than R33 million of public funds in fighting impeachment, in the process depleting the legal services budget of the office of the public protector, despite it having received an additional R20 million from the justice department.
Early last year, Gcaleka said her office would not fund Mkhwebane’s legal representation before the section 194 inquiry beyond March. It had by then spent R26.2 million in that financial year on her legal challenges to the process, and the lawyers representing her before the inquiry.
Mkhwebane devoted a substantial part of her founding affidavit to rehashing her objections to how the impeachment process unfolded.
“I raise these matters not for resolution here but purely as background context.”
But, she added that the present application was urgent partly because she planned to use the gratuity to her legal challenge to her removal. She said she planned to challenge the fairness of what transpired between the refusal of the chairperson of the section 194 inquiry, Qubudile Dyantyi, in June last year and the vote to remove her in September.
Should the present application not be dealt with on an urgent basis, and she would therefore not have the funds to launch that challenge, she would suffer double jeopardy.
“The failure to urgently adjudicate the present application will cause not only the jeopardy of impoverishment but the double jeopardy of prolonging the delay in the vindication of my other rights affected by the plainly illegal removal.”
She alleged that denying her a gratuity was designed to render her helpless against the injustice she believed she suffered in what was a political witch-hunt.
The ANC, the Democratic Alliance and the Freedom Front Plus colluded to remove her from office, taking care to time this so as to have financial consequences, and Gcaleka and her office played along, she charged.
“It was widely and correctly speculated that what motivated the above mentioned and peculiar illegal conduct on the part of the political parties referred to above, aided and abetted by the first and/or second respondents, was the malicious desire to deny me the payment of the relevant gratuity in the mistaken belief that I would automatically forfeit it.”