The Office of the Public Protector should not pay Busisiwe Mkhwebane a R10 million gratuity because she already received significant financial benefits through the payment of her legal fees, which exceeded R10 million, the North Gauteng High Court in Pretoria was told on Tuesday. Advocate Tembeka Ngcukaitobi SC argued that granting the impeached former Public Protector a R10 million gratuity would be akin to rewarding "constitutional delinquency."

Ngcukaitobi, representing the Office of the Public Protector, emphasized that Mkhwebane is the only Public Protector to have been impeached for misconduct and incompetence, setting her apart from her predecessors. Mkhwebane is contesting her former employer's refusal to pay her a gratuity, a benefit previously granted to all former Public Protectors. Ngcukaitobi contended that awarding her the payment would establish a negative precedent. He argued that Mkhwebane does not qualify for the gratuity because she did not leave office under the conditions specified by the Public Protector Act, but was instead removed for misconduct.

Ngcukaitobi outlined the four scenarios under the Public Protector Act where a gratuity is granted: completing the seven-year term, leaving due to incapacity or ill-health with National Assembly approval, resignation, or death. Mkhwebane did not meet any of these conditions, as she was removed following a parliamentary vote based on the findings of a Section 194 inquiry, which found her guilty of incompetence and misconduct. Ngcukaitobi highlighted that previous Public Protectors received gratuities because they completed their full terms and were deemed suitable for such payments. He rejected the argument made by Mkhwebane's legal counsel, advocate Dali Mpofu, who claimed that denying her the gratuity was "arbitrary, cruel, and degrading," and contrary to the values of ubuntu.

Ngcukaitobi maintained that there is no constitutional provision granting a legal right to a gratuity.