Former public protector Busisiwe Mkhwebane. Picture: Timothy Bernard/Independent Newspapers
Former public protector Busisiwe Mkhwebane suffered yet another legal defeat on Wednesday when the North Gauteng High Court dismissed her application to force her former employer to pay her R10 million once-off gratuity despite her impeachment.
Judge Omphemetse Mooki described the application as “absurd” when dismissing it with costs.
This comes after the Supreme Court of Appeal found last week that Mkhwebane’s appeal on another matter was “self-evidently dead on arrival”.
Mkhwebane approached the court after her successor, Kholeka Gcaleka informed her that she would not be paid a gratuity because it was paid when an incumbent vacated office, not when removed from office.
She was removed from office for misconduct and incompetence after a resolution was taken by the National Assembly on September 11, 2023, a month before the expiry of her seven-year term.
In her application, Mkhwebane cited Gcaleka, Office of Public Protector, President Cyril Ramaphosa, the Finance Minister and Speaker of the National Assembly as respondents.
She wanted the court to make a declaration that the refusal to pay her a gratuity was unconstitutional.
Gcaleka, the Office of Public Protector and the National Assembly Speaker opposed the application.
Mkhwebane said in her application the conditions of service entitled her to a gratuity because “vacation of office” referred to leaving office or post.
In his ruling, Judge Mooki said the dispute between the parties was, fundamentally, a divergence of views on the interpretation of the expression “on vacation of office” in clause 3.1 of the Conditions of Service.
The judge said the interpretation of a contract was not a constitutional matter.
Judge Mooki also said there was no constitutional rule that merited attention in interpreting clause 3.1 of the Conditions of Service.
“An issue does not become constitutional matter merely because a litigant calls it one or where the issue is dressed up in constitutional garb.”
He said Mkhwebane did not identify a law that was inconsistent with the constitution in relation to her not being paid gratuity.
“She did not elaborate as to which provision of the constitution has either been breached, misapplied or misinterpreted. A court cannot give declaratory relief in terms of section 172 (1)(a)on non-specific assertions that there are breaches of the constitution.”
Judge Mooki also said Mkhwebane was required to establish that the decision refusing her a gratuity constituted administrative action.
“The decision refusing a gratuity was not the exercise or performance of ‘a public power’ or ‘public function’. It was conduct pursuit to a relationship arising from a contract of employment, namely clause 3.1 of the Conditions of Service.”
He added Mkhwebane was refused a gratuity on the exercise of a contractual power.
“The decision refusing the applicant a gratuity does not constitute administrative action.”
Judge Mooki said Mkhwebane’s remuneration did not include payment of a gratuity.
“The applicant’s entitlement or otherwise to a gratuity is a function of the terms of her contract of employment. She was not entitled to a hearing before the Public Protector respondents decided that the contract does not entitle her to a gratuity.”
The judge said he agreed with the respondents that a gratuity was a token of appreciation as expressed by an employer towards an employee.
“It would be absurd for an employer to be expected to pay a gratuity, being a token of appreciation, to an employee who left office in disgrace.”
The judge said Mkhwebane was removed from office and did not vacate office within the meaning of the Conditions of Service.
He also said it was regrettable that Mkhwebane said about the respondents.
“She did not substantiate the very serious allegation that she made both in relation to the office of the public protector and the person of Ms Gcaleka as the Public Protector.
“There was no need for the applicant’s intemperate comments against the National Assembly regarding the events leading to her removal from office. This court is not concerned with her removal from office,” she said.
Cape Times
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