Is Mkhwebane entitled to a gratuity?
Former Public Protector Busisiwe Mkhwebane, having failed in a long, drawn-out battle to exonerate herself from the charges of ‘incompetence’ and ‘misconduct’ that led to her removal from office, now has to save face.
The biggest question is whether she is entitled to the gratuity that seems to be in the region of R10m; a gratuity that was given to the three other Public Protectors before her without much question when they finished their terms.
The answer to that, according to Muhammad Hussain in a commentary on the News24 site, is murky.
In fact, he suggests, there are potentially two financial benefits that Mkhwebane will lose owing to her impeachment a month shy of the end of her seven-year term: a month's salary of about R202 800 and the gratuity.
Payment of the month's salary is not disputed, but the gratuity is.
He explains the figure for the gratuity Mkhwebane was entitled to at the end of 31 March 2022 was R7 578 312. By 31 March 2022, Mkhwebane had been in office for five years, five months and about two weeks. Her suspension came two months later, on 9 June, and her impeachment was a year and three months after that, on 11 September.
Effectively, Mkhwebane was in office for only five years and seven months (eight if you are generous). She was also paid a salary for the 15 months of her suspension. The final gratuity, taking into account these time periods, would be in the region of R9 910 100, opines Hussain.
Mkhwebane's total remuneration as reported in the annual reports from 2016/17 to 2021/22 is R20 760 444. This included four line items: basic salary, non-pensionable allowances, other allowances and gratuity. Removing the gratuity component because, as the report states, ‘the Public Protector is entitled to a taxable lump sum gratuity on vacation of her office’, the total remuneration Mkhwebane would have received until 31 March 2022 is R13 188 133.
This, he figures, is about R2 434 735 per annum on average (which, divided by 12 months, gives you an estimation of her monthly salary – R202 800). Adding last year's salary and removing the final month brings the salary Mkhwebane was paid to about R15 419 974.
Mkhwebane has previously said that: ‘Even if I'm removed today, I would be entitled to my gratuity.’
However, notes Hussain, the law is unclear on this.
Nowhere does it say a Public Protector loses their gratuity if they are impeached or that they have to be in office until their end of term to receive this amount.
The wording in the Public Protector's annual reports says: ‘The Public Protector is entitled to a taxable lump sum gratuity when vacating the office as stated in conditions of service applicable to her.’
The conditions of service say: ‘On vacation of office, a gratuity calculated in accordance with the formula,’ then lists the formula, with a provision made for a spouse to receive this provision upon the death of a Public Protector in office.
One legal opinion is that if gratuity is not a form of a pension payout then the grounds for withholding a gratuity need to be made – in this case, if the gratuity is based on ‘recognition of active service’ and is ‘used to protect the independence’ of the Public Protector's office, it could be argued that Mkhwebane failed in this attempt.
However, in 2012, during a feisty committee hearing with former Public Protector Thuli Madonsela, she stated that the gratuity is paid out in lieu of a pension at the end of a Public Protector's seven-year term.
Taking this into account, if it is a pension-like payment and pension rules apply, then, generally, there is a prohibition on employers depriving an employee of their benefits.
However, there is an exception to this, too.
Benefits can be withheld if an employee causes the employer damage due to theft, fraud, dishonesty or dishonest misconduct which they have either admitted in writing or in respect of which the employer has obtained a judgment.
If the National Assembly's verdict on the removal of Mkhwebane stands as a judgment, there is the possibility that her gratuity could be withheld until all legal processes and appeals are finalised – and eventually not be paid due to her being found guilty of misconduct.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.