The Public Protector of South Africa met with the Portfolio Committee on Justice and Constitutional Development to discuss the review of the salary package of the Deputy Public Protector. The Public Protector informed Members that the Public Protector Act provided the scheme for the salary and remuneration package of the Deputy Public Protector. The current Deputy Public Protector was appointed in November 2005; subsequent to this appointment the Committee made a determination for the salary of the Deputy Public Protector. The salary was determined at the level of a Chief Director in the public service which amounted to R609 234. The problem with this was that the salary structuring was not the same as that of a judge or the Public Protector. The practical impact was that the Deputy Public Protector’s salary was far below that of the Public Protector and the level was similar to that of normal staff members. The previous Public Protector remedied some of the problems by increasing the salary level to 14 which was the same as that of the Chief Executive Officer in the Public Protector’s Office. The Public Protector requested the following: he Deputy Public Protector’s conditions of service should be linked to that of a judge of the High Court or Judge President; the Committee had to determine the motor vehicle scheme, assessment of transport etc and the remuneration should be backdated to 2005 as the determination by Parliament in 2005 was not fair.
The Committee corrected the Public Protector on her presentation regarding the date of the salary determination and appointment of the Deputy Public Protector contending that the determination was made prior to the decision by the National Assembly (NA) in August 2005 and the appointment was made in December 2005. This was important because the Committee felt that before the Deputy Public Protector took office in 2005 she knew what she was going to be earning. This was also the basis of the Committee’s view that backdating to 2005 was inappropriate. It was pointed out that the Public Protector Act specified that the salary of the Public Protector would not be less than that of a High Court judge and yet what was requested went far beyond. The Committee requested the basis for the request that the salary level of the Deputy Public Protector should be the same as that of a judge of the Supreme Court of Appeal. The Committee made it clear that it had not taken a formal decision or an informal one to the effect that it agreed to the salary review and backdating of the Deputy Public Protector’s package where the matter was raised by the Public Protector in previous meetings.
The Committee enquired about delegated tasks that were assigned to the Deputy Public Protector and asked when she had to step in the position of the Public Protector. The Committee asked why the Public Protector had considered the judiciary and not other Chapter 9 institutions when benchmarking the salary of the Deputy Public Protector. The Committee inquired as to how the previous Public Protector had raised the salary level of the Deputy Public Protector through the Act and not Parliament. It was suggested by the Committee that the gratuity of the Deputy Public Protector could be considered and also that if there would be any backdating then the period under consideration would be from 2010 onwards.
Presentation: Supplementary Submission on the Review of the Conditions of Service of the Deputy Public Protector
Advocate Thuli Madonsela, Public Protector (PP) of South Africa (SA) said that the first submission from the PP on this matter was in April 2010. On 6 May 2011 a supplementary submission was made that provided a breakdown of the amounts involved in the last financial year. The PP was created by the Constitution and the Public Protector Act (PPA) made provision for a Deputy Public Protector (DPP) to assist the PP. The PPA provided a regime for the remuneration of the DPP. The current DPP was appointed in November 2005; subsequent to this appointment the Committee made a determination for the salary of the DPP. The salary was determined at the level of a Chief Director in (CD) the public service which amounted to R609 234. The salary structuring was not the same as that of a judge or the PP; it was done in accordance with a statutory commission which was linked with the public sector. The practical impact was that the DPP was far below that of the PP and the level was similar to that of normal staff members. The former PP remedied some of the problems by increasing the salary level to 14. This meant that the salary of the DPP was the same as that of a Chief Executive Officer (CEO). The DPP’s conditions of service should be linked to that of a judge of the High Court or Judge President; doing this would bring the gap closer between what the DPP and the PP earned. It was also requested of the Committee to determine the motor vehicle scheme, assessment of transport etc. Linking the salary to that of a judge would mean that the same benefits that judges enjoyed would apply to the DPP. The remuneration should be backdated to 2005 as the determination by Parliament in 2005 was not fair and this Parliament had to correct this and raise the salary of the DPP to the level of a Judge President.
Mr J Jeffery (ANC) said that he had questions concerning the salary of the DPP and the PP as they were linked. It was not correct to say that the salary of the DPP was determined by Parliament in 2005, it was made prior to the decision by the National Assembly (NA) in August 2005 and the appointment was made in December 2005. The PPA specified that the salary of the PP would not be less than that of a High Court judge. What was being asked for here went far beyond this and to the level of an appeal court judge which was one of the highest levels. There was no reference in the PPA on the salary of the PP being linked to any other judge except for a High Court judge. On what basis was the PP asserting that her salary was matched to that of an appeal court judge, what was the gratuity mentioned in the document and where did it come from? How was the previous PP able to raise the salary level of the DPP, where did these powers come from? In the 2010/2011 PP Annual Report the difference in salary range between the PP and the DPP was 32%. The difference in the salary of the Speaker and the Deputy Speaker was also 30% so this was not unusual. If one looked at local government municipal managers earned far more than the political head, so the parity with staff argument may not be problematic.
Adv Madonsela said that Mr Jeffery had “ambushed” her as she was not aware that her salary would be under scrutiny however since the matter was now on the table the Committee should know that the salary package should have been reviewed upon appointment as it was done with the previous incumbents. When the salary package of the previous PP, Adv Lawrence Mushwana, was reviewed the determination placed it at the level of an appeal court judge. Mr Jeffery was correct in saying that the Committee had determined the salary of the PP before the position was taken.
Mr Jeffery interjected and said that the Committee had made a recommendation and the determination was made by the House, this was a crucial point and there was public documentation to that effect. The issue was that the DPP had taken the position before this.
Adv Madonsela asked to be given an opportunity to finish her presentation. The salary of the Auditor General (AG) was reviewed and deemed to be unfair by the Committee responsible and it was backdated. This Committee should do the same and benchmark against that salary determination. The fact that the DPP’s salary had been determined before she took up the position should not be a stumbling block. The salary should be adjusted on a regular basis and Parliament was supposed to review and adjust the salary before the end of the DPP’s term which was coming to an end soon. The PPA provided for a salary determination that was no less than that of a High Court judge not equal to this position. The gratuity was not a paid amount and the salary package of the PP was the same as that of a Supreme Court of Appeal (SCA) judge. The Committee received a presentation on this matter two years ago and it had agreed that there was a need to remedy the situation, it could not now turn around and change its mind- this was maladministration. The PP had it in writing that the Committee had agreed for the salary to be reviewed. If the Committee wanted to question this matter then it should have done so two years ago. The PP’s office had thought that the Committee had made a decision and accepted the proposal two years ago. The DPP then continued in her position with the understanding that her salary package was being favourably reviewed. In terms of administrative justice one could not make a decision, reflect on that decision and then change it after some time.
Mr Jeffery said that the AG’s report had not been adopted by the NA. He apologised for raising the issue of the PP’s salary but it had to be raised because there was not much difference between her salary and that of the DPP. The link of the salary of the PP with that of a SCA judge was still not clear. During the briefing referred to by the PP the Committee or individual Members may have expressed sympathy but there was no decision taken by the Committee. Decisions of the Committee were reported to the NA and then were binding. Decisions of the Committee were done via a vote and could more information be sought on this decision that was taken by the Committee as it was now being accused by the PP of maladministration.
Ms Madonsela apologised for accusing the Committee of impropriety however the members of staff of the PP’s office were under the understanding that a decision had been taken and it was only a matter of determining a figure. The minutes should be looked at through the office of the Secretary of the Committee.
Mr Jeffery said that it may be the understanding of the PP that a decision was made but what mattered was the understanding of the Committee. There were no official minutes that were taken which the Committee approved, there were unofficial minutes taken by the Parliamentary Monitoring Group (PMG) but these were not looked at by the Committee and were of no basis. The PP should not accuse the Committee on the basis that a decision was taken.
The Chairperson said that this would have to be clarified.
Ms D Schäfer (DA) said that the Committee had not agreed to anything, it had said that it would look at this matter. On what basis had the previous PP made a decision to increase the salary of the DPP? The DPP took the job knowing what she was going to earn and to have it backdated to 2005 was not a convincing argument. The Committee could backdate to 2010 because this was the first time that the matter had been brought to the attention of the Committee. Where was this money going to come from, had it been provided for in the budget? The salary of the PP was not on the table but the PP did link it to the salary of the DPP. It was not clear how the PP’s salary was calculated and this year it was projected to be higher than that of the Chief Justice (CJ). Why did the PP consider the salaries of judicial officers and not of the other Chapter 9 Institutions? The Committee had to take up the issue of the salary of all Chapter 9 Institutions as this was a serious matter and legislation was yet to be drafted to regulate this.
Prof G Ndabandaba (ANC) asked why the salary had to be backdated to 2005.
Adv S Holomisa (ANC) said that the Committee had not taken a decision on the salary review of the DPP. Why was the PP of the opinion that the salary of the DPP should be linked to that of a Judge President? The PPA specified that the salary of the PP should be no less than that of a High Court judge probably because it was envisaged that a High Court judge may be appointed as a PP one day. Which functions of the PP had been delegated to the DPP and when was there ever a time when she acted as a PP, this was important for the Committee to know so that it could understand what the DPP had done. Was the PP expecting that all the benefits that applied to judges, including their spouses receiving a portion of their salary when they passed away, should apply to the DPP as well?
Adv Madonsela said that the gratuity of the PP did not include the other benefits that applied to judges such as a salary for life etc. The PP was also not going to earn as much as the CJ or a Justice of the Constitutional Court (CC). The PPA did not allow moonlighting for the PP and the DPP and some sort of gratuity should be considered for the DPP. There were a multitude of delegations for the DPP- she was the head of the good governance unit and she was responsible for quality control as well as quality assurance. The early resolution part of the PP had been assigned to the DPP. The DPP also acted when the PP was away for a week or two, she just did not produce reports. The Committee was not compelled to use a judge to benchmark for the DPP’s package but it also was not prevented from doing so. The salary package of the DPP had to be reviewed from time to time as per the Act and yet her term was ending this year and it was still being discussed. The PP was of the view that the first determination of the DPP’s salary was incorrect hence the request to backdate to 2005 when the determination was first made. The PP was of the view that the benchmark should be internal as opposed to the other Chapter 9 Institutions which probably used their own model. A salary level connoted authority and this was the norm in the public sector.
Ms Schäfer said that the Office of Institutions Supporting Democracy (OISD) had said that the PP’s salary was going to be higher than that of the CJ at R2.384 million for the upcoming financial year.
Adv Madonsela asked where this figure came from and argued that it was misleading. Everything was processed by the Department of Justice and Constitutional Development (DoJCD) and it would have picked up on this, it was impossible to earn more than the CJ. If the gratuity was included in the package then it might make it seem like the money was more but it should be remembered that the gratuity was not an amount that was paid to the PP every year.
Adv Nonkosi Cetshwayo, Head of the OISD said that the gratuity was inflated and it had a tendency to create confusion when it reflected on the annual statements. The OISD had wanted to receive information on the determination of the level of remuneration that the PP should be getting.
Adv Madonsela said that the accounting system for the salary package of the PP had been the same for the past 16 years. Adv Lawrence Mushwana used Section 3 to increase the salary of the DPP which provided for the salaries of staff to be increased by the PP.
Mr Jeffery pointed out that the DPP was not part of the staff.
Ms Madonsela said that she was according to Section 3(a).
Mr Jeffery said that there was another part of the PPA that referred to the DPP’s remuneration specifically, if this was not so then the PP would not be here as she could raise the salary herself.
Adv Madonsela said that the previous PP merely raised the salary level and did not amend the package. This act by the previous PP was audited and there were discussions with the DoJ&CD.
The Chairperson referred the PP to Section 3(9) of the PPA and said that the DPP was not appointed by the PP and that section referred to the staff and remuneration that the PP may determine.
Ms Madonsela said that she was aware of this.
The Chairperson said that he did not expect the PP to answer for the previous incumbent.
Mr Jeffery said that the difficulty with benchmarking was that the roles were not the same. Judges worked in a different way from the PP whereas the PP wrote reports which were not the same as judgments; this was the problem with benchmarking. If one took away the gratuity, the PP received R1.717 960 million according to the previous year’s report. In the same year the Chairperson of the South African Human Rights Commission (SAHRC) received R942 000 and the Chairperson of the Commissioner for Gender Equality (CGE) got R888 000. The Committee and the NA had to look at the Chapter 9 institutions as a whole and a review was necessary as the disparities were large. The accusation by the PP that the Committee was guilty of maladministration was serious and it had to be addressed. It should not be appropriate for public servants like the DPP who earned a salary that was more than R1 million and which came from the public purse to moonlight. The gratuity was something that the Committee could look at before the DPP left office. This could also be reviewed for the next DPP. SA was very good at determining the salary of public office bearers; nobody could determine their own salaries. It was easy to access someone a public official’s salary details. In this case the DPP must have known how much she was going to earn as well as how much the PP was earning at the time. This made the notion of backdating to 2005 problematic, the DPP took the job knowing what she was going to earn. The DPP was earning more than the Chairpersons of the SAHRC, CGE and some Members of Parliament (MP) this was not a bad salary.
Adv Madonsela said that this debate should have occurred in 2010. The allegation of maladministration was withdrawn with an apology but the Secretary should try to access any records on the meetings that occurred in 2010. The suggestion of backdating to 2010 was a good one. The job of the PP was more onerous than that of a judge. The PP did more writing than a judge of the CC.
Mr Jeffery said that it was not the same, court judgments were binding in accordance with the principle of precedent.
Adv Madonsela said that Magistrate Courts decisions were not binding. The quality of the work of the PP was the same as that of judges and the volume was more. The Committee should schedule a separate meeting for the review of the PP’s salary as the PP’s office was unprepared.
Ms Schäfer said she accepted that salary levels were indicative of seniority in government. It was accepted that the Chief Executive Officer (CEO) had to earn less than the DPP whose salary currently stood at R1.2 million. The DPP’s salary could be adjusted to that of an ordinary judge which was R1.3 million. Adv Holomisa’s point that the salary of the DPP should be pegged in accordance to her current functions was incorrect. The determination should be at a certain level depending on the requirements of the position. Gratuity of the DPP could be considered and the backdating could be to 2010.
Mr Jeffery asked what the salaries of the DPP and the PP were for this financial year.
Adv Madonsela said that the legislature must have envisaged that the DPP would be somebody who was not far from the PP and thus the salary level had to be close. Delegated duties should not form part of the determination and also, it was the post that had to be ranked and not the current position. The position of the DPP had to be compared to that of a professional and not a political head.
The Chairperson said that the PP had introduced the comparison between the salary of the DPP and that of politicians.
Adv Madonsela said fair enough and withdrew the comment.
Ms Schäfer asked if the level of a judge would be fair for the salary of the DPP to be benchmarked against.
Adv Madonsela replied in the affirmative. The budget for the increase was being canvassed with Treasury. Everytime the PP had made a submission Treasury was informed.
Adv Holomisa said that Parliament had to come up with a remuneration package framework for the PP as per the requirements of the Act.
Mr Jeffery said that the budget and where the money was going to come from was determined by the Committee because Parliament passed the budget. The PP could not approach Treasury because even the Committee’s recommendation had to be approved by the NA.
The Chairperson said that he was not going to roundup. Effectively the review of the salary package of the DPP had begun. The Committee would probably meet next week. He requested PMG for their minutes for May 2010 notwithstanding that the PP had withdrawn her accusation. A question that was asked was should the salary packages of all Chapter 9 Institutions be reviewed. In the drafting of the PPA there may well be unintended consequences because there was now a situation where the PP was earning the same amount as a judge of the SCA and some Members were questioning this. He did not believe this was the intention of the legislature. The Committee should seriously consider the amendment of the PPA.
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