Mkhwebane to sue over refusal to pay her R10m gratuity

Former Public Protector and EFF member of parliament, Busisiwe Mkhwebane. Picture: Bongani Hilubane

Former Public Protector and EFF member of parliament, Busisiwe Mkhwebane. Picture: Bongani Hilubane

Published Feb 21, 2024


Former Public Protector and EFF member of parliament, Busisiwe Mkhwebane, has confirmed her decision to sue her former deputy, Kholeka Gcaleka, over the refusal to pay a R10 million gratuity.

The Office of the Public Protector previously said its refusal to pay Mkhwebane's gratuity was informed by a legal opinion stating that she was not entitled to it due to her impeachment.

In a statement released on social media on Tuesday, Mkhwebane confirmed her next move, saying she regrets the move but has no choice but to fight the only way she knows how - which is through the courts.

Current Public Protector Kholeka Gcaleka. | Armand Hough Independent Newspapers

“It is with great regret that I announce the necessity of pursuing legal action against the office of the Public Protector. Despite numerous attempts by my legal representatives to engage with the Office of the Public Protector regarding my gratuity stipulated in my employment conditions, our enquiries have been met with dead silence,” Mkhwebane said.

However, this is in contrast with the recent statement by the office which said it that they had “duly responded” to her inquiry about her gratuity.

Mkhwebane said last week, her former office publicly announced that it had refused to pay her based on the fact that she was recalled from her office.

Last September, the majority of MPs in the National Assembly resolved to impeach Mkhwebane after 318 MPs (79.5%) voted in support of her removal, with only 43 parliamentarians voting against the Section 194 committee report, which found Mkhwebane unfit to hold office.

“Last week, the PP publicly announced her decision to deny the gratuity, citing the reason that I did not vacate my office of my own volition. This decision is wholly unfounded and introduces a new punitive condition which has no basis in my employment contract. This conduct is not only unlawful, but also unconstitutional,” she said.

Mkhwebane argues that she was entitled to her full benefits, adding that the refusal is against the principles of fair labour practice and dignity. She added that the constitution is only clear on the impeachment of the President but says nothing on leaders of the Chapter 9 institutions.

“It is noteworthy that while the Constitution outlines the forfeiture of benefits for the impeachment or removal of the president from office under specific circumstances, it is silent on any forfeiture of benefits in the removal of judges or heads of Chapter 9 institutions. Regrettably, after seeking legal counsel, there is no alternative but to seek recourse through the judicial system, ” she said.

“A legal challenge will be filed in the High Court to address the interpretation of the employment conditions of service, relevant legislation, and the Constitution by the Public Protector. This decision has not been taken lightly, but in the pursuit of of upholding the principles of fairness, justice and the protection of rights of every individual under law,” she said.