‘No help from parliament’ on Mkhwebane’s exit payout
The office of the public protector was placed in a “seriously invidious position” when parliament would not guide it over what to do about impeached public protector Busisiwe Mkhwebane’s exit gratuity, it said in correspondence now before court.
The office of the public protector on Friday filed in court the Rule 53 Record documents underlying its decision to refuse to pay the gratuity. Mkhwebane has gone to court over the gratuity reportedly about R10m. She says she is entitled to it while the public protector says it is payable only to those public protectors who “vacate” office, not those who are “removed” or impeached.
The record filed reveals that while Mkhwebane was writing to the public protector’s office demanding the gratuity, the office was seeking guidance and advice from parliament on what to do in the “unprecedented circumstances apparently to no avail.
The office wrote to parliament’s chief legal adviser on November 14, asking for an “urgent directive and guidance”, referring to “recent engagement and communications with the parliamentary legal advisers”.
The letter said CEO Thandi Sibanyoni had concluded that it “was not clear” Mkhwebane was entitled to the gratuity “normally payable to outgoing public protectors”.
This was because of the “unprecedented circumstances” of her impeachment.
But the guidance was apparently refused: “We are not aware of any provision in law that empowers the National Assembly to give directions and guidance as requested,” said a responding letter from parliament’s chief legal adviser Zuraya Adhikarie, a month later.
In the meantime, a lawyer’s letter of demand had been received from Mkhwebane.
The public protector’s office then turned to the Office on Institutions Supporting Democracy, asking for its “urgent support and intervention” and saying that it had been placed in “a seriously invidious position” by parliament’s stance.
The letter from the public protector’s office to parliament’s legal advisers sets out the legal pickle the public protector’s office felt itself in. It said the CEO, as accounting officer, was required to ensure that “liabilities ... are incurred only for authorised purposes”.
But she wasn’t sure this payment was authorised. The conditions of service for public protectors might be “open to an interpretation” that parliament’s intention was that impeached public protectors were not entitled to a gratuity.
The conclusion reached, said the letter, was that “it was not clear” whether impeached public protectors could receive the gratuity. Also, that the public protector is not an employer when it comes to the public protector —“it does not play any role in the determination, establishment, or enforcement of any condition of employment”. Because of this, the office “was not in a position” to decide whether there was any basis for a dispute about her conditions of employment or her employment contract relating to the gratuity.
In the later letter to the Office on Institutions Supporting Democracy, the public protector’s office put it more starkly: “The PPSA is not vested with any discretion or prerogative to pronounce on the existence, content and extent of the legal rights and entitlements of the public protector and the interpretation of the applicable contractual or statutory legal rule(s).”
Setting out the law governing the employment conditions of the public protector, the letter said the public protector’s office thought it was parliament that had the authority to deal with the question.
But parliament apparently declined. It also appears parliament sought a legal opinion because the correspondence says, “We are respectfully of the view that if there was no basis for the engagement, and the legal opinion sourced by the office of the speaker is not expected to add value to the substantive issue under discussion, we would have preferred to have been advised accordingly as soon as possible, to enable the CEO to manage the risks involved.”
The record contains no answer from the Office on the Institutions Supporting Democracy. There are also no legal opinions or advice anywhere in the record. These would have been excluded because they are privileged.
The next step in the litigation is that Mkhwebane may, based on this new information, supplement her grounds for attacking the decision.