Former Public Protector Busisiwe Mkhwebane has suffered another legal blow after the High Court in Pretoria ruled against her request for a R10 million gratuity from her former employer, the Office of the Public Protector. The court rejected her claim that withholding the payment constituted unfair labor practice, a significant setback following her removal from office in 2023.
Mkhwebane was dismissed from her role in September 2023, just weeks before the end of her seven-year term. Her dismissal came after a parliamentary inquiry found her guilty of incompetence and misconduct, leading to her removal from office.
In her bid for the R10 million gratuity, Mkhwebane argued that withholding the payment was unjust, particularly given her years of service. However, her successor, Public Protector Kholeka Gcaleka, declined the request, explaining that the payment was not stipulated in Mkhwebane’s contractual terms. Gcaleka emphasised that the gratuity was discretionary and not automatically awarded, especially under the circumstances of Mkhwebane’s exit.
In delivering the judgment, Judge Omphemetse Mooki clarified that Mkhwebane’s rights were not violated by the decision to withhold the gratuity. He pointed out that a gratuity is a “token of appreciation” awarded at the employer’s discretion, and it would be unreasonable to grant such a payment to someone who left office under disgraceful circumstances.
Mooki further stated, “It would be absurd for an employer to be expected to pay a gratuity—being a token of appreciation—to an employee who left the office in disgrace.”
The court found that Mkhwebane was not entitled to a consultation under the Promotion of Administrative Justice Act (PAJA), as the decision to withhold the gratuity did not breach her constitutional rights or any administrative fairness standards.
