Mkhwebane v Office of the Public Protector and Others (023495/2024) [2024] ZAGPPHC 995 (9 October 2024)

Mkhwebane v Office of the Public Protector and Others (023495/2024) [2024] ZAGPPHC 995 (9 October 2024)

The court held that the applicant was not entitled to a gratuity upon removal from office for misconduct and incompetence. The Conditions of Service distinguish between 'vacation of office' and 'removal from office,' with the former referring to leaving office at the end of the term and the latter to removal for...

Source-derived case information.

Citation
[2024] ZAGPPHC 995
Parties
Applicant: Busisiwe Mkhwebane; Respondent: Office of the Public Protector; Respondent: Kholeka Gcaleka; Respondent: President of the Republic of South Africa; Respondent: Minister of Finance; Respondent: Speaker of the National Assembly
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 October 2024
Case Number
023495/2024
Procedural Posture
Review Application / Final Judgment
Outcome
Application dismissed with costs.
Judges
Mooki
Legal Topics
Removal of Public Officer, Interpretation of Employment Contract, Gratuity Entitlement, Section 172 Declarator, Administrative Action Review, Basic Conditions of Employment Act
Constitutional Law Labour Law Civil Procedure Removal of Public Officer Interpretation of Employment Contract Gratuity Entitlement Section 172 Declarator Administrative Action Review +1 more

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Summary, issues, holding and outcome

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Parties

Busisiwe Mkhwebane

Applicant

Office of the Public Protector

Respondent

Kholeka Gcaleka

Respondent

President of the Republic of South Africa

Respondent

Minister of Finance

Respondent

Speaker of the National Assembly

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant is entitled to a gratuity upon removal from office for misconduct and incompetence under the Conditions of Service.
  2. 2 Whether the refusal to pay the gratuity constitutes unconstitutional conduct or a breach of the Basic Conditions of Employment Act.
  3. 3 Whether the decision to refuse payment of the gratuity is reviewable under PAJA or the principle of legality.

Ratio Decidendi

The court held that the applicant was not entitled to a gratuity upon removal from office for misconduct and incompetence. The Conditions of Service distinguish between 'vacation of office' and 'removal from office,' with the former referring to leaving office at the end of the term and the latter to removal for cause. The language and structure of the Conditions of Service, including the separate treatment of gratuity and transport allowances, support this distinction. The refusal to pay a gratuity was a contractual decision, not administrative action, and did not breach the Basic Conditions of Employment Act or the Constitution. The applicant failed to establish a constitutional matter...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay costs.