Public Protector clams up on decision to withhold R10m payout to Busisiwe Mkhwebane

In December 2023, newly impeached former Public Protector Busisiwe Mkhwebane threatened legal action against her successor, Kholeka Gcaleka, for withholding her “gratuity”.

Late in the afternoon of Tuesday, 13 February, the Office of the Public Protector issued a general media statement. It was short and sharp.

“Following numerous media enquiries regarding the payment of a gratuity to former Public Protector, Adv Busisiwe Mkhwebane, the Public Protector South Africa (PPSA) confirms it has duly responded to Adv Mkhwebane’s correspondence. No further comment will be made,” said the acting spokesperson for the PPSA, Ndili Msoki.

Read more in Daily Maverick: Busisiwe Mkhwebane to fight her successor for R10m ‘gratuity’

Previously, Mkhwebane said she had sought to resolve the matter “amicably” but that a letter to the PPSA had provoked no response apart from a suggestion that she take her case to Parliament.

Mkhwebane, now an EFF MP, has not responded to the latest media release from the office of the PPSA dashing her hopes of a windfall, but she is almost certainly not going to let the matter rest there.

In January, she told City Press: “It is very clear that the Public Protector is entitled to a gratuity when vacating office, although it is not clear how the Public Protector vacates office.”

Mkhwebane did not finish her term following a vote by Parliament after a lengthy and costly multiparty Section 194 inquiry found her guilty of incompetence and misconduct and recommended her removal.

Read more in Daily Maverick: Long road to impeachment: Mkhwebane is guilty as charged – here’s a breakdown of the damning findings 

As previously reported, this is not the first time that a former Public Protector has had to forfeit a portion of their “gratuity”. Thuli Madonsela had a portion of her R4-million payout docked by Mkhwebane back in 2016.

The circumstances, however, were radically different – Madonsela not only completed her term of office, but did so with aplomb, dropping the State Capture report which led to the historic Zondo Commission.

After taking office, Mkhwebane deducted R470,000 from Madonsela’s total gratuity for repairs to an official vehicle paid for by the office. Madonsela’s son had taken her car without her permission and had pranged it.

Madonsela maintained that she had never acted “in contravention of any Public Protector policies, applicable government prescripts and general laws of the land required of me regarding the accident”.

In a way, Mkhwebane opened the way for the withholding of her own gratuity, calculated to be around R10-million.

Throughout, Mkhwebane has remained mum on the R4-million she owes the public purse for the rental paid by the PPSA of a luxury home in the Bryntirion ministerial estate in Pretoria.

Mkwebane spent almost her entire tenure living among those over whom she had oversight. Her rent was paid by the taxpayer.

Read more in Daily Maverick: Busisiwe Mkhwebane’s rent-free days in lush ministerial estate are over

Constitutional expert Prof Pierre de Vos had previously opined that Mkhwebane was not entitled to her gratuity.

“This isn’t a constitutional matter, but something to be determined by the conditions of service agreement concluded when she took office.”

From a legal perspective, De Vos said, it was “clear as can be” that the law provided for a gratuity only on completion of a term, and for payment of minor benefits (even if impeached). It’s clear that Mkhwebane is not entitled to a gratuity if removed from office through impeachment. DM