Advocate Busisiwe Mkhwebane MKP chairperosn of Mpumalanga
Former Public Protector Busisiwe Mkhwebane is continuing her crusade to be paid gratuity that she says is due to her after leaving her position as the country’s Public Protector.
Mkhwebane was the 4th Public Protector in democratic South Africa and assumed the position in October 2016 until she was removed in September 2023 after being impeached by Parliament.
Mkhwebane has not been paid her gratuity, estimated to be around R10 million when she left office and has been fighting for it ever since.
Her successor Kholeka Gcaleka has so far been successful in opposing this payment in various courts.
On Wednesday this week Mkhwebane filed Heads of Argument in the Gauteng High Court in Pretoria to seek leave to appeal against a court judgment handed down against her on 9 October 2024.
The Court’s decision on that date was that the said gratuity is a contractual issue and not a legal benefit and does not form part of remuneration under the Basic Conditions of Employment Act (BCEA).
However, in their Heads of Argument filed on Wednesday in the High Court in Pretoria, Mkhwebane’s legal team led by Advocate Dali Mpofu and L.Moela argued that the 9 October 2024 court ruling is legally unsustainable, pointing out that Section 35(5) of the BCEA expressly references gratuities and implies their inclusion in remuneration unless specifically excluded.
“Treating gratuities as a mere token of appreciation that is akin to a discretionary bonus is a misdirection,” asserted Mkhwebane’s legal team.
The Heads of Argument further accuse the court of misapplying Section 172 of the country’s Constitution by refusing to consider just and equitable remedies under Section 172(1)(b) without first declaring invalidity.
The legal team also argued that Mkhwebane was not afforded a hearing (audi alteram partem), and that she was subjected to double jeopardy through removal from office combined with forfeiture of benefits.
Calling for condonation regarding the late filing of leave to appeal application, Mkhwebane explained that the delay stemmed from a bona fide belief that papers had been timeously delivered and that this delay might have been caused by her previous attorneys or court processes.
Mkhwebane insists that the respondents in this matter were aware of the notice to file for leave to appeal via the Constitutional Court Rule 19.
Mkhwebane concludes that material errors of law, misdirection on fact, and failure to apply binding jurisprudence justify appellate intervention, preferably by the Supreme Court of Appeal.
The 13-page Heads of Argument signal a determined push to vindicate what her team describes as fundamental constitutional rights to fair process, dignity and lawful remuneration of public office-bearers.
Over and above all, Mkhwebane is urging the High Court to grant her leave to appeal the entire October 2024 judgment and order handed down against her as she contends that there are reasonable prospects of success on appeal or alternatively, compelling constitutional reasons why her appeal must be heard.
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