The Portfolio Committee on Justice and Constitutional Development deliberated on the salary review of the Deputy Public Protector. The issues outlined by the Committee were based on the submission from the Public Protector which were: the salary of the Deputy Public Protector had to be at the level of a Deputy Judge President; the backdating had to go back to 2005; the Committee had to consider the leave and the request for a settlement and transport allowance. He Committee noted that in the previous meeting with the Public Protector it was also submitted that there was a 30% gap between the salary of the Public Protector and the deputy. The Committee Members expressed their views individually with one Member stating that one could not link the salary of the Deputy Public Protector with that of a judge as the functions of an ombudsman were different. The leave issues that were raised also had no basis as the settlement and vehicle allowance were linked to that of judges. It was noted that the Deputy Public Protector earned R1.2 million which was a good salary. On the backdating issue it was felt that the Deputy Public Protector had come into the position knowing what she was going to earn. The Committee agreed that should there be an increase and a gratuity was considered, then Treasury had to be consulted.
Another Member of the Committee noted that on the backdating issue it was unfortunate that after assuming a position people tend to say that they were not happy with the levels at which they were appointed. The Committee was encouraged to consider all Chapter 9 Institutions as there was no uniformity. The linkage of the salary of the Deputy Public Protector with that of the judges was per the legislation which linked the Public Protector’s salary with that of the judges; however the way the judges worked was different. A further reason that was put forward for the backdating to not be effected was that there was huge fiscal pressure on Treasury at the moment. Another Member was of the view that the gratuity request was fair as the Deputy Public Protector was not getting a pension and it should have been part of the package from the start and since the salary review of the Deputy Public Protector was brought to the attention of the Committee in 2010, if there was any backdating it should be from this period. A Member expressed concern that it was still not clear how the salary of the Deputy Public Protector got to be R1.2 million and how the Auditor General had approved this as it was done by the previous Public Protector, it was suggested that the Committee should write to the Auditor General and find out as it was only a Committee of Parliament that had the power to raise the Deputy Public Protector’s salary. The Committee agreed that the salary of the Deputy Public Protector at R1.2 million was a fair salary. Two Members of the Committee were also in agreement that the Deputy Public Protector could have contributed to a government pension scheme with her salary given that other similarly placed government employees followed that route. The Committee agreed that it would consider the matter further and alert the Chairperson when it was ready to make a decision.
Mr J Jeffery (ANC) took the Committee through the issues that emerged from the written submission made by the Public Protector (PP). The PP had submitted that:
•the salary of the Deputy Public Protector (DPP) had to be at the level of a Deputy Judge President;
•the backdating had to be to all the way back to 2005
•the Committee had to consider the leave which compared to that of the judges was not enough
•the DPP wanted a settlement and transport allowance.
The PP then addressed the Committee the previous week and Members had to consider what was said then. The work of the PP was important and what was going to be said was not intended to undermine that at all. The National Assembly (NA) determined the conditions for the PP and the DPP; unfortunately it had not passed new conditions but amended existing ones over time. What would be useful would be for the Office for Institutions Supporting Democracy (OISD) to produce one document on the remuneration of the PP’s office and reflect the date of each amendment made by the NA. It was also submitted that there was a big gap with the salaries of the DPP and PP which was roughly 30%. This was not a basis for stating that the current determination was wrong as it was something common in the public sector e.g. the difference in salary range between the Speaker and Deputy Speaker was 30% as well. One could not link the salary of the DPP with that of a judge as the functions of an ombudsman were different. The leave issues that were raised were not supported as well as the settlement and vehicle allowance because they were linked to that of judges. Judges did not have staff or an office that they went to every day unlike the PP. This was not a party position but an individual observation; there was no basis for the salary to be increased, the DPP earned R1.2 million which was a good salary and was certainly more than what most Members of Parliament were earning. There was a huge problem with the request that there should be backdating as the DPP accepted the terms when they were worked out, there was a huge problem in this country where people took government jobs and shortly after they had started they would say it was not enough. The backdating would also depend on whether or not there would be an increase.
The NA presumably included a gratuity for the salary of the PP because her term was for a non-renewable period of seven years. The DPP’s term was renewable and the Committee had to consider whether there should be a gratuity in light of this. The NA had presumably chosen to not have a renewable term for the PP because they did not want the PP to be nice to the Executive for the purpose of wanting a second term. It was well known what the PP did, her reports were in her name but this was not the case for the DPP. The DPP’s position was not that high profile, one did not hear of the DPP as much as the PP. Whatever the Committee did had to have a rational basis with good reasons. The Committee would have to consult with Treasury should there be an increases.
Ms D Schäfer (DA) said that the fact that the DPP’s salary was renewable would in fact make her more susceptible to being nice to the Executive rather than the PP. The DPP’s term might be renewed or it might not, the Committee must not base its decision on this. The gratuity request was fair as she was not getting a pension and it should have been part of the package from the start. The backdating to 2005 was not agreeable as the package was determined before she took office. The Committee was requested to deal with this matter in 2010 and it did not do this so if there was going to be backdating then it should be done from 2010. The DPP was working hard and had quite a lot of work that was assigned to her. The pegging of the salary should be linked to that of the judges because in the Public Protector Act (PPA) it was held that the salary of the PP shall not be less than that of a judge of the High Court. The work of the PP may be different from that of judges but they were independent and there was a high degree of integrity required of the Office of the PP. It was still not clear how the salary of the DPP got to be R1.2 million and how the Auditor General (AG) approved it, the Committee should write to the AG and find out as it was only a Committee of Parliament that could have raised the salary, yet this was done by the previous PP. It was problematic that the previous PP raised the salary of the DPP; R1.2 million was not that bad. The time period for the review of salaries was vague and it was not fair for those who assumed positions without knowing specifically when their salaries would be reviewed.
Mr S Swart (ACDP) said that the work of the PP was supported. It was unfortunate that after assuming a position people stated that they were not happy with the levels at which they were appointed. The Committee might want to look at the fact that there was not any uniformity with all the Chapter 9 institutions, this was a separate issue. The linkage of the judge was per the legislation however the way the judges worked was different. This matter was supposed to be dealt with in 2010 however the backdating to 2005 was not favourable as there was huge fiscal pressure on Treasury at the moment and there would have to be input sought from them. This matter should have been dealt with in 2010, the Chief Executive Officer of the PP had raised the salary of the DPP and on this basis this had to be condoned. The massive gratuity was not favourable as it would amount to R5.5 million and also the term of the DPP could still be renewed. The Committee also had to be careful to not set a dangerous precedent that would be followed by other Chapter 9 Institutions.
Adv S Holomisa (ANC) said that the reason why the previous PP raised the salary of the DPP was because Parliament had not done so, he was doing the work that Parliament should have done and for this reason his decision should be condoned. The provision for the renewal period was vague. In other cases a salary was reviewed every year. If the Committee agreed to an increase then the period for backdating should be from 2010. The Committee was stuck with the pegging to judges’ salaries because the salary of the PP was already at the level of an appeal judge. However there was no provision for the salary of the DPP to be pegged to the level of a judge because the DPP need not be a judge at the time of appointment and there was no provision for this either. The Committee had no guidance for the salary of a DPP. The Committee may want to peg the salary of the DPP to the level of a High Court judge as she acted as the PP when the PP was not there and there were a lot of tasks that were delegated to her.
Mr Jeffery said that there were four issues that the Committee had to look at; the first was whether the DPP’s salary would be increased; would the terms and conditions be improved; should there be a gratuity and should there be backdating. The increase of the DPP’s salary by the previous PP was not picked up by the AG, the current PP felt that it was legitimate and to refer the matter back to the AG would be tantamount to saying that the AG made a mistake. The Committee may want to acknowledge that this was done and that it did not feel that it was right. If the Committee was of the opinion that the difference in salary range between that of the DPP and PP was too high, then on what basis would this be? There did not seem to be a reason for the salary of the DPP to be pegged to that of a judge- the PPA only linked the salary of the PP to that of a High Court judge. A further fundamental issue was that there were no reports in the name of the DPP; this meant that the PP kept the overall responsibility. The settlement allowance for the PP was illogical; however it should be noted that the NA did approve it during the previous Parliaments. The DPP was getting a salary at the level of a Deputy Director General (DDG) which was a contract position. DDG’s did not get a pension but they did contribute to a pension fund from the salary they got, why could the DPP not do the same? The gratuity did not have to be backdated; the first issue was should the DPP get a gratuity and why.
Ms Schäfer said that there had to be a basis for an increase. The Committee report of 2005 specified that the conditions of service had to be in line with the Public Service Act, this was a different approach to what the Committee had been saying. It was not fare to exclude the gratuity because it was not there from the beginning and it should have.
Mr Jeffery said that he did not like the pegging as the functions of the PP and a judge were different. The DPP had had annual increments to her salary and the type of work that was done by the Office of the PP was more civil in nature than judicial. Ms Schäfer had said that the DPP should get a gratuity, if that would be the case then that would have to apply to all other government contract workers. Other government contract workers contributed to a pension scheme why could the DPP not do the same thing?
Mr Swart agreed with Mr Jeffery, if the DPP was included in the government pension scheme it would have meant that she contributed 7% of her salary towards a pension fund.
Ms Schäfer said that she was still unclear on what basis the previous PP had increased the salary of the DPP.
The Chairperson said that the answer put forward by Adv Holomisa previously when he addressed this matter was probably correct; it was the previous Committee and the NA at the time that had failed to fulfil its duty.
Ms Schäfer said that it had to be ensured that these kinds of things did not apply in future when done but it was not. A clear guideline and set of criteria have to be set out from here onwards this or that should have been done.
The Chairperson said that after last week’s meeting he kept asking himself what triggered a salary review for the DPP.
Mr Swart suggested that it might be something that the Office of the PP did on their own, so if it was every year then it would be every year.
The Chairperson said that a review did not mean that there would be an increase.
Adv Holomisa asked what the difference between a review and a determination was.
Mr Jeffery said that a review was when all the factors were considered and a determination was what followed. The review of the PP’s salary was not in any way meant to imply that she was being disadvantaged; it was just difficult to look at the DPP’s salary in isolation.
The Chairperson said that Section 219 of the Constitution mentioned the PP but not the DPP.
Mr Jeffery pointed out that when the Constitution was passed there was no deputy.
Ms Christine Silkstone, Content Adviser to the Committee said that the DPP was appointed by the President and to have her removed required a majority vote by the NA.
Ms Schäfer said that the Committee should take more time to consider this.
The Chairperson said that there was no urgency and there should be no unnecessary stress or pressure placed on the Committee.
Mr Jeffery said that if there was going to be an increase there should be input from Treasury. There should be reasons for a gratuity.
The Chairperson said that the Members should confer and consult and then they should inform the Chairperson when the Committee would be ready.
The meeting was adjourned.