The office of the public protector is to recover R90 000 in leave pay given illegally to former public protector Lawrence Mushwana, while his close associate at the protector’s office, Shirley Thoke, is likely to face disciplinary action for authorising the payout.
The recovery of the leave money was confirmed this week by the spokesperson for the protector’s office, Kgalalelo Masibi.
Masibi said: “Advocate Mushwana has made contact with the public protector and the matter is in the process of being settled amicably.”
Thoke, executive manager of provincial investigations and coordination in the protector’s office, was the acting chief executive officer at the time Mushwana’s gratuity was paid out.
The Mail & Guardian revealed last week that Mushwana received a R6,8-million golden handshake, including payment for the 25 days of leave he did not use.
The M&G has learned from sources close to the protector’s office that Mushwana offered to repay the money before a letter of demand was sent to him by the new protector, Thulisile Madonsela, on the instructions of Justice Minister Jeff Radebe.
Thoke authorised the payout in breach of Mushwana’s service conditions.
These state that “no leave shall be accumulative and no salary allowance shall be claimed in respect of leave which could have been taken, but was not utilised”.
This week, Parliament again failed to answer questions about Mushwana’s gratuity and leave payout, despite the protector’s office being accountable to the National Assembly and the Speaker.
Parliament also failed to explain why it originally decided on gratuity payments for exiting public protectors, when heads of other Chapter 9 institutions, who have a similar duty to protect democracy, are not entitled to them.
Justice ministry spokesperson Tlali Tlali said the gratuity paid to Mushwana should not be viewed as an indictment of him, adding that the protector’s service conditions sought to ensure that “a fit and proper person is appointed with the necessary security and independence to act without fear or favour”.
Tlali said the gratuity formed part of the service conditions of “any individual” appointed to the position, provided he or she was a fit and proper incumbent. “Their identity is wholly irrelevant,” he said.
Mushwana’s fitness for the office was repeatedly questioned throughout his seven-year term.
The protector’s office has failed to provide evidence that Mushwana indeed had 25 unused days of leave. Masibi said the office did not have his leave records for 2007 and 2008 years and conceded that he should have forfeited the leave instead of cashing it in.
Annual reports indicate that this is not the first time the office has contravened conditions of employment with regard to leave payouts.
Thoke was the only person paid for leave not taken in the last financial year. This was also in violation of the protector’s internal leave policy, which allows leave payouts for staff members only after termination of service.
A report tabled in Parliament in September shows Thoke was paid R11707. She is still employed in the protector’s office.
Masibi could not explain the transaction, but conceded that it was an irregular payment because there was “no policy basis” for it.
“The policy states that leave is payable on condition that leave was denied and not rescheduled and there [should be] written proof of refusal of leave by the head of department,” Masibi said. “According to HR records, there is no written proof of refusal of leave”.
Although all other employees are encouraged to take leave or forfeit the days, Mushwana approved Thoke’s leave payout, said Masibi.
The protector’s office has previously denied allegations of nepotism against Mushwana, particularly in relation to Thoke. Masibi refused to go into detail about steps that will be taken against Thoke for authorising Mushwana’s leave payout. “Internal procedures will be followed and we cannot pre-empt the outcome”.
The M&G has learned that plans are under way to charge Thoke and take her through internal disciplinary procedures.