Deliberations on the Request from the Public Protector for the review of the remuneration and conditions of employment of the Deputy Public Protector

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Justice and Correctional Services

28 February 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development considered the salary and remuneration package of the Deputy Public Protector. The Committee noted that there was a dispute with the Public Protector during the initial briefing on what was said at previous meetings with the Committee and the minutes of the Parliamentary Monitoring Group had to be relied on. A Member of the Committee was of the opinion that access to the Parliamentary Monitoring Group’s minutes should be granted and that it was not unreasonable for Parliament to pay since the Parliamentary Monitoring Group had to recoup operating expenses. Other Members of the Committee were of the view that Parliament should produce its own minutes via the Committee Section which would capture items on discussion, points raised as well as decisions taken by the Committee. It was said that the minutes of the Parliamentary Monitoring Group were not official however they were useful as a further resource base especially where archived material was concerned. The Committee took the resolution that the Chairperson would write to the House Chairperson to raise this matter.

The Committee then proceeded to deal with the matter of the salary and remuneration package of the Deputy Public Protector and one Member proposed the following resolution: : Taking into account the pending proposal for the remuneration of Chapter 9 institution office bearers by an independent remuneration committee in the near future; in addition  that the DPP’s remuneration package was agreed to shortly before she was appointed in 2005 (which provided for annual increments) and also that the DPP’s salary was substantially adjusted by the previous PP; the current remuneration package of R1.2 million should be approved and all other terms of the resolution of August 2005 should remain applicable. Another Member said that the proposal seemed to be in line with a number of views expressed by other Members during the previous engagement. He accepted the proposal and added that a gratuity should be considered dating back to 2010 when the Public Protector first approached Parliament on this matter. Another Member agreed with the proposal and added that the annual inflation linked adjustment should be considered as well. The formula for calculating the gratuity was questioned and as well as whether or not the Committee had to accept it. There was a debate on whether the gratuity should be backdated to 2010. On the one hand it was felt that the gratuity should be backdated to 2010 as this was the period when the matter was brought to the attention of the Committee and it was only being dealt with now on 2012 and on the other hand it was felt that the period when the matter was brought to the Committee’s attention was immaterial because the Committee could have settled on any figure back in 2010. There was support for the proposal that the gratuity should be a year’s salary including the tax amount. The Committee decided that National Treasury’s input would be solicited via a letter to the Minister of Finance.

Meeting report

Discussion
The Chairperson said that the Committee would pick up where it left off last time. Three issues emanated from the previous meeting, the first was whether the Deputy Public Protector’s (DPP) salary would be increased, secondly if she should receive a state owned vehicle and finally if she should receive a gratuity at the end of her term which would be linked to her salary. There were two views; the first was that if an increase was agreed to it should be backdated to May 2010 and the second view was that there should not be an increase until the relevant or proposed commission was established. There was no clarity as to whether the DPP should be given a gratuity or not.

Mr J Jeffery (ANC) said that he would like to raise a point before the discussion commenced. When the Public Protector appeared before the Committee there was a big dispute with the Committee which was resolved by looking at minutes of the Parliamentary Monitoring Group (PMG). The problem was that PMG covered this Committee very well. Mr Lange Nkabinde attended meetings regularly and the Committee did not have access to these minutes. If one wanted access to the minutes payment was required and the rates were quite high. It used to be free access to Members of Parliament (MP) but this was no longer the case because PMG was a private entity and had to recoup its costs. The problem was further compounded by the fact that Parliament would pay for the Members but there was no agreement on this issue. The Chairperson should take this matter up with the Chairperson of the House Committees. It was not correct that the Committee was having discussions on the basis of reports that the Committee did not have access to. If a Member had to get access to a report one had to do so individually and pay a fair proportion. Non-Governmental Organisations (NGO) had free access and it was not unreasonable to expect Parliament to pay.

Mr S Swart (ACDP) supported the proposal. He had made extensive use of PMG minutes previously when it was still available to Members for free, particularly when meetings clashed like this morning.  The matter should be raised urgently as PMG did a lot of good work and it would be worthwhile for MP’s to have access as opposed to paying for it individually. It was understandable why there were costs involved given the global economic crisis and the donor funding that had shrunk.

Ms S Schäfer (DA) said that she did not have a problem with the proposal however what was a problem was why Parliament was not keeping its own minutes especially when it came to matters of dispute. Why should an outside organisation be relied upon? Many of the PMG minutes were excellent but one could not be entirely sure of their accuracy and there were one or two occasions when she had been quoted and it was not entirely correct. The Committee should have its own minutes that were approved by Members and corrected if necessary.

Adv S Holomisa (ANC) said that Mr Jeffery had correctly pointed out that PMG minutes were not official they could merely assist as a guide. Parliament should have its own minutes and somebody should record the proceedings, this was what happened with other Committees. Other Committees had minutes that had to be adopted so that there was an accurate record of what took place. The Committee Section should provide this service.

Ms L Adams (COPE) said that she agreed with the previous two speakers, sometimes it was frustrating when a Member has missed a meeting and when they next attended they had to smell what had happened and rely on PMG which was an outside organisation. The Committee Section had to assist Members and there had to be adoption of minutes at meetings.

Mr Jeffery said that there were two issues, on the issue of Committee minutes it was understood that these were minutes but they were very brief. For somebody to take down accurately everything that was said would require a full time post. The Committee Secretary may take notes but he/she would also perform other tasks. If minutes were going to be made official then they would have to be confirmed by the Committee at each meeting, sometimes the Committee’s deliberations were quite long and this may take some time. There was no [problem with the records that the Committee Secretary kept however they were not going to be that detailed i.e. have what each person said and if the Members requested this then there would be a need for increased capacity. The PMG minutes were not official but they were accessible to others, why could they not be accessible to Members as in Parliament paying. The issue should be separated as in the formal minutes and an existing verbatim transcript that was available to the public.

The Chairperson said that his understanding was that the meetings were recorded but it was not clear to what extent. The question was would Members want the short crisp version of minutes or a more detailed and longer version.

Adv Holomisa said that this was a Committee and it held serious meetings and discussions. Normally minutes reflected the point under discussion and a little of the various views, the decisions would also be noted. The point was not whether the minutes from Parliament were crisp or comprehensive; it was a matter of them indicating what was discussed, what the views were and also what decisions were taken.

Ms Schäfer said that she largely agreed with this, the Committee did not need a verbatim recording of the minutes only what issues were discussed, what the issues were and what decisions had been made. The Committee did not have to approve minutes during the following meeting; it could have a meeting where minutes were approved collectively.

Mr Swart said that if the Committee was going to go the route of official minutes then those minutes would have to be as crisp as possible because sometimes the Committee sat twice and three times a week. The reason why the Committee was having this discussion was because there was a dispute. There was once a dispute in one of the previous Committee’s and the audio recordings were listened to. Access to PMG was still required as their minutes were readily available.

The Chairperson said that the issue with the audio recordings would be how long they would keep them for; the Committee may want to think about this.

Mr Jeffery said that he would like to have access to PMG minutes not because they were official but on the basis that they were some account of what happened at a particular meeting that the public had access to. The problem was that there were a lot of deliberations that the Committee had with no decisions taken and hopefully other Members would like to have an account of what happened. As far as the official minutes were concerned the Committee Secretary should be honest about what he could do or not do. The other issue was that if minutes were not adopted immediately often people would forget what was said. It was not clear what would be the purpose of adopting a whole set of minutes in one go as suggested by Ms Schäfer. In the official minutes the following could appear: some of the issues raised some of the points as well as the decisions.

Ms Christine Silkstone, Content Adviser of the Committee, said that PMG was also useful in terms of archived information because one might want to cross reference or compare information. From a resource perspective PMG was very useful. 

The Chairperson said that the issue of archives was important because in terms of the Promotion of Access to Information Act (PAIA) an entity was not supposed to delete information. Minutes should be electronically and digitally stored. What happened to the written submissions received by Parliament from civil society?  Parliament had dealt with the setting up of the Constitutional Court (CC) the South African Human Rights Commission (SAHRC) etc, I think that all the records of submissions when these things were done were lost. The issue of the discussion of the DPP’s salary should also be kept somewhere, what would one do if somebody made a PAIA request for the details of today’s discussion five years from now.

Adv Holimsa said that this should not be a difficult matter, in other Committees which I chair the Committee Secretary took minutes which they submitted to me as the Chairperson which were then distributed to Members which eliminated time wasting. Official meetings should be properly recorded and it was the decisions should be captured.

The Chairperson said that the work of the Committee Secretary was about to increase and the Committee would do as suggested by Adv Holomisa The Committee must now move on and deal with the issue of the salary of the DPP. Minutes must be sent via email to Members.

Ms Schäfer said that she had a proposed resolution which read as follows: Taking into account the pending proposal for the remuneration of Chapter 9 institution office bearers by an independent remuneration committee in the near future; in addition that the DPP’s remuneration package was agreed to shortly before she was appointed in 2005 (which provided for annual increments) and also that the DPP’s salary was substantially adjusted by the previous PP; the current remuneration package of R1.2 million should be approved and all other terms of the resolution of August 2005 should remain applicable. The Committee should not agree to an increase based on the fact that the DPP had in the past had a substantial adjustment that was re-determined by the previous PP, it was still doubtful whether such action was legal. The reasons underlying the proposal were that the money was decent enough already and the DPP’s duty were not as demanding as those of the PP. The motivation for some sort of gratuity was that the Public Protector Act did provide that the remuneration package should be determined from time to time. It was not an unrealistic expectation that the salary of the DPP would be adjusted, it could be argued that the adjustment has already occurred in the R1.2 million. It could be argued that the DPP’s salary was begged to that of senior management and it thus be a concern that she did not enjoy the same performance bonuses.

Adv S Holomisa said that the proposal seemed to be in line with a number of views expressed by some Members during the previous engagement. The proposal was accepted but in addition a gratuity should be considered dating back to 2010 when the PP first approached Parliament on this matter. The DPP has had the expectation that her package should be adjusted and this was not unreasonable, the Committee should consider Ms Schäfer’s proposal with a gratuity to 2010.

The Chairperson said that a gratuity was only paid at the end of the DPP’s term.

Mr Swart agreed with what Ms Schäfer had proposed only that the annual inflation linked adjustment should be considered as well. Some form of gratuity was favourable, the basis of this would have to be further considered and obviously National Treasury would have to be consulted. The PP’s formula for calculating the gratuity did not have a tax consideration.

Ms Silkstone said that Mr Swart was correct.

Mr Jeffery said that the formula from the PP seemed to be arbitrary; D was the basic salary and this was fine; this was then divided by 7 which was the term of office; the amount was multiplied by the number of years in office which was understandable; the amount was doubled and it was not clear why; there was then an addition of 3 once again why. The plus 3 and times 2 seemed to be arbitrary. A gratuity of R3.4 million or even R2 million seemed much too high. Perhaps one year’s salary might suffice.

Adv Holomisa said that the Committee could agree in principle and have somebody make the calculations. The gratuity should be backdated to 2010 when the matter was brought to the Committee’s attention; it would seem arbitrary to say one year or one and a half.

Ms Schäfer said that she would agree in principle on a calculation based on the DPP’s salary and then the period would be from 2010. Was the Committee bound to follow the formula of provided by the PP? Would there be a difference if the DPP was appointed for another term as this would result in a substantial increase?

The Chairperson said that the Parliament was the body that made the determination, nobody else could decide otherwise on a final figure recommended by it. The only thing would be for Treasury to say that the money was not available in the budget. 

Adv Holomisa asked if the matter of Treasuries input was raised with the PP.

Mr Jeffery said yes it was especially because it was another matter where there was disagreement. The proposal was one year’s salary, it did not have to be linked to the year that the matter was raised, and this would be okay only if the salary was going to be increased. The gratuity was for the end of the year and it should still be a year’s salary.

Ms Schäfer said that she would agree to having a gratuity of one year’s salary at the time of the conclusion of her current term.

The Chairperson said that added to this should be the tax amount.

Adv Holomisa said that the gratuity fell under the consideration that would date back to 2010 because the Committee was required to determine the salary and terms and conditions of the DPP’s package.

Mr Jeffery said that even in 2010 the Committee may have arrived at the figure of one’s salary for the gratuity, the basis of the Committee’s decision should not be that because the matter was first raised in 2010, therefore the gratuity should be backdated.

Ms Schäfer agreed with Mr Jeffery.

Mr Jeffery said that it would not be a good idea to adopt the resolution without Treasury’s input. If the DPP decided to resign on the spot she would still get the gratuity. The Chairperson should write to the Minister of Finance. The Director General (DG0 for the Department of Justice and Portfolio Committee should also be informed of this consideration as the money would be coming from this Department.

The Chairperson agreed.

Prof G Ndabandaba agreed with the proposal from Mr Jeffery.

Ms Schäfer asked on what terms would the new DPP be appointed if the current one’s term was not going to be renewed, would that determination not be on what the Committee was doing now.

Mr Jeffery said that the determination for the DPP was linked to the PP, the determination that has been adopted by the House stands. When the current PP assumed office in 2009 there was no new total determination. It was interesting to note that the PP’s package has not been reviewed since 2002. The Committee had to provide for a one year’s salary gratuity which would be the monthly rate of what she was getting now. 

The Chairperson said that he would find away to communicate the Committee’s position and recommendation to the PP.

Meeting Adjourned.

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