Public Protectors who've been removed due to misconduct, incompetence not meant to receive gratuity, court told

JOHANNESBURG - The Office of the Public Protector’s legal team said that an incumbent who'd been removed from office because of misconduct and incompetence, like Busisiwe Mkhwebane, was not meant to receive a gratuity.

Mkhwebane’s legal bid to force her ex-employer to pay her an estimated R10 million is continuing in the High Court in Pretoria on Tuesday.

Previous Public Protectors have received an end-of-service gratuity on vacation of office in line with the conditions of service.

But because she was impeached, the Office of the Public Protector has refused to pay Mkhwebane out.

Advocate Tembeka Ngcukaitobi, for the Office of the Public Protector, has been arguing that there are only four categories of vacation of office provided for in the Constitution, the Public Protector Act and the Conditions of Service themselves.

"It’s vacation by completion of the office under section 193 of the Constitution, vacation at the instance of Parliament on account of ill-health or incapacity, vacation by resignation provided that 3 months’ notice is given and vacation by death."

He argued further that removal from office, in Mkhwebane’s circumstances, was not covered.

"The fact that the instrument itself separated removal is a clear, we submit, with respect, coherent and logical indication that removals for misconduct and incompetence were not intended to clothe the removed person with any entitlement to a gratuity."