Analysis: Busisiwe Mkhwebane Legally Entitled to Gratuity Payout

By: Thabo Ramaila
Legal Journalist

Busisiwe Mkhwebane’s legal battle for her gratuity payout has sparked significant debate. While her opponents argue that she isn’t entitled to this benefit because she didn’t complete her term, this position is not only legally flawed but also fundamentally unfair. Let’s explore why the opposition’s arguments are misguided and why Mkhwebane’s claim is justified.

Misinterpretation of Gratuity Entitlement

The main argument from those opposing Mkhwebane’s payout is that a gratuity is only owed if an office bearer completes their full term. This interpretation is overly simplistic and fails to consider the nature of the gratuity itself.

1. Gratuity is an Earned Benefit: A gratuity is not a gift for completing a term; it is a benefit earned through service. Mkhwebane served the majority of her term as Public Protector, and during that time, she fulfilled her duties, whether or not her tenure was eventually cut short. To deny her the payout based on a technicality ignores the fact that she provided substantial service to the country, which the gratuity is meant to compensate.
2. No Clear Forfeiture Clause: The opposition’s argument lacks a clear legal foundation. There is no explicit provision in the laws governing the Public Protector’s office that states a gratuity is forfeited if the term is not completed. In the absence of such a clause, the default position should be that Mkhwebane is entitled to the benefit she has earned, proportional to the time she served.

Unfairness and Double Standards

The opposition’s stance is not just legally weak—it’s also deeply unfair. Mkhwebane’s removal from office, whether justified or not, does not negate the years of service she provided. Denying her the gratuity is punitive and sets a dangerous precedent.

1. Precedent of Fair Treatment: In other contexts, public servants and employees are typically compensated for the period they served, even if they don’t complete their terms. The opposition’s argument selectively applies standards that would unfairly penalize Mkhwebane alone, which smacks of a double standard.
2. Impact on Public Office: This opposition not only targets Mkhwebane but also sends a chilling message to future office bearers. If public officials can be stripped of their earned benefits simply because they are removed from office, it undermines the security and independence that these roles require. Public office bearers need to know that they will be treated fairly, regardless of how their terms end, to encourage them to act without fear or favor.

Ignoring Constitutional Principles

The opposition also fails to consider the broader constitutional principles that should guide this case.

1. Right to Fair Labor Practices: Section 23 of the Constitution guarantees everyone the right to fair labor practices. Denying Mkhwebane her gratuity is a clear violation of this right. It is an unjust penalty that ignores the fact that she served the country in good faith for most of her term.
2. Independence of Chapter 9 Institutions: The Public Protector’s office is a Chapter 9 institution, meant to operate independently and without undue influence. The opposition’s argument, which effectively punishes Mkhwebane financially, risks undermining the independence of this critical office. Future Public Protectors might feel pressured to avoid controversy or unpopular decisions, fearing personal financial loss if they are removed from office.

Public Policy and Fairness

Finally, the opposition’s stance is bad public policy. It creates an environment where public officials are unfairly targeted, and it discourages the kind of independent, courageous service that South Africa needs from its public office bearers.

1. Undermining Public Trust: Public confidence in Chapter 9 institutions like the Public Protector depends on the perception that these offices operate fairly and without bias. By denying Mkhwebane her due gratuity, the opposition undermines trust in these institutions and sends a message that political or procedural decisions can strip officials of their rightful benefits.
2. Setting a Dangerous Precedent: If Mkhwebane’s opponents succeed, it will set a precedent that public officials can be denied benefits they’ve earned, based on a narrow and unfair interpretation of the law. This would discourage talented individuals from serving in public office, fearing they could be unfairly penalized if their tenure ends prematurely.

Conclusion

The opposition to Busisiwe Mkhwebane’s gratuity payout is not just legally unsound; it is also unfair and sets a dangerous precedent for the treatment of public officials. Mkhwebane served the country as Public Protector, and she deserves the benefits she earned during her time in office. The arguments against her payout ignore key legal principles, constitutional protections, and basic fairness. It’s time to recognize that denying her gratuity would be an injustice not just to her, but to the integrity of public service in South Africa.