'They can just pay': Mkhwebane upbeat about gratuity case after public protector blamed for delays

Former public protector Busisiwe Mkhwebane says she is excited about her legal case over nonpayment of her gratuity by the office of the public protector after the Pretoria high court criticised the office for delays.

Judge Colleen Collis removed the case from the urgent court roll on Thursday because it was “not ripe for hearing”. The court ordered the public protector's office to pay legal costs, blaming it and public protector Kholeka Gcaleka for the case not being ready to be heard.

“We are excited with this outcome. It is concerning that advocate [Tembeka] Ngcukaitobi and the public protector [Gcaleka], who is an officer of the court, would behave the way they have behaved not assisting the court to avail the records [on time],” Mkhwebane said reacting to the court order.

Ngcukaitobi argued in court the public protector's office was not given enough time to file some of the requested documents.

The case will continue, though Mkhwebane said she would have preferred to settle the matter “amicably” out of court.

In an interview with Newzroom Afrika, Mkhwebane said there was no law preventing her from receiving the multimillion-rand gratuity, despite being fired.

“The nonpayment of the gratuity has impacted me drastically. I see the arguments made that I am now an MP. Out of that [MP salary] you have to support your family and any other person because I am there as a representative of the people. I am helping in my community,” she said.

Mkhwebane said the decision not to pay her had a serious impact on her finances and that of her family.

“I have children and debts that I must pay. It is not easy, it is very difficult. I do not know why they still pursue the legal route. It would be best if they can just pay whatever I am entitled to so that we can continue with our lives.”

Gcaleka, however, believes the court challenge by her former boss would help clarify a legal conundrum regarding whether an impeached head of the institution is entitled to the gratuity.

Mkhwebane was fired by President Cyril Ramaphosa on September 13, two days after parliament voted in support of the section 194 inquiry report that recommended her removal based on its findings of misconduct and incompetence.

While the constitution states the public protector may be removed from office on grounds of misconduct, incapacity or incompetence, it does not stipulate what happens to the gratuity if the individual is removed.

Gcaleka said a court judgment in Mkhwebane’s legal challenge will be crucial in determining what happens to a gratuity payment when a public protector is fired.

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