State Attorney Amendment Bill; Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill: discussion on latest drafts

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Justice and Correctional Services

11 February 2014
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The latest working drafts of the State Attorney Amendment Bill was tabled by the Department of Justice and Constitutional Development. Minor changes had been made to the new section 2(1)(b)(i), where the phrase “High Court” had been used, to section 2(1)(b)(ii) where the inclusion of “advocates” was noted, and a grammatical change to the new section 2(3). Members spent some time discussing the options for the new section 2(4), which dealt with termination of the appointment of the Solicitor-General (SG). The Committee had asked that striking or suspension of this person from the professional roll should result in termination of the appointment, but the drafters raised concerns that the SG (and also the State Attorneys) would be governed by the Public Service Act and Labour Relations Act, which required that “due process” be followed in order to terminate a public sector appointment, and it was suggested that perhaps a public service disciplinary process would have to ensue, not automatic termination. Members felt that this was surely not intended, pointing out that the appointment would depend on certain conditions, which, if no longer fulfilled, would justify termination. They preferred Alternative 1 for this clause. A Member then raised a concern that as the Bill was presently worded; the SG would not currently have to be on the roll of advocates or attorneys, merely entitled to be on a roll. In principle, Members agreed that the SG must be subject to the professional ethics of either professional body, and asked that the Bill be revised to ensure that the intention was correctly captured. Members then discussed whether it was necessary to specify in the Bill that the Minister should appoint an Acting SG and agreed that the wording as used in the National Prosecuting Act for this eventuality could be imported into this Bill. Similarly, it would be useful to make provision for the appointment of an Acting State Attorney. Members discussed briefly again whether there should be any prerequisite for a SG to be admitted again to the attorney’s roll after appointment, because there was reference to “subject to the ethical norms and standards of the attorneys profession”, but it was clarified that this clause was intended to be a limitation on the powers of the Minister, to ensure that there was no compromise to the SG, and that it did not need to be changed. The Memorandum on the Objects of the Bill needed to be revised to reflect the deletion of references to “control” by the Minister. Members wondered whether “any” duties, as referred t in the new section 3A(2)(b) was not too wide, but it was explained that the SG or State Attorney could only be requested to assist with matters falling within the Minister’s mandate, and that the wording envisaged the possible broadening of the mandate of the State Attorney in the longer term. It was also clarified that the references to the State Attorney performing duties for other countries linked to the Prevention of Organised Crime Act, and matters of mutual legal assistance. Members would consider adoption of the Bill on the following day.

The latest draft of the Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill was tabled, although other changes would be made also by the following day. In respect of the Public Protector Act, Human Rights Commission Act, Commission on Gender Equality Act, Electoral Commission Act, and Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act, in their relevant sections referring to determination of remuneration, the phrase “Parliament” had been replaced with “National Assembly”, the correct title of “High Court of South Africa” was used (as the Superior Courts Act had now been promulgated) and the reference to consultation with the (relevant) Minister had been deleted, so that only the Minister of Finance was involved. Wording to amend the Independent Communications Authority of South Africa (ICASA) Act, the Public Service Act and the Financial and Fiscal Commission legislation was still being drafted. Two possible options had been prepared for the definition of “constitutional institution” under the principal Act. Members preferred the option in which the definitions of Public Protector and Deputy Public Protector were deleted, and “constitutional institution” was defined as “the Public Protector, the Auditor-General and any commission established under the Constitution, including ICASA..”. Members debated whether to refer to “ICASA “as referred to” or “as established in terms of “ or “as provided for” in section 192 of the Constitution”, but the drafters would consult and suggest appropriate wording. There was also debate on whether ICASA had “members” but the general consensus was that to all intents and purposes its councillors were “members”. They also did not believe that any Minister had to be consulted specifically at this point although courtesy letters could be addressed. The definition of ‘office bearer” would also be revised to include a reference to the Deputy Public Protector.

The drafters highlighted the changes to the provisions on benchmarking of their salaries, for the Public Protector and the Auditor-General, which now said they should receive “not more than” that of a judge. Members debated again whether benchmarking was necessary or desirable or whether the entire comparison exercise should not be referred to the Independent Commission. Eventually, they concluded that these two positions differed from others because of the nature of these institutions, and the fact that the posts required 60% approval from Parliament for appointment and two thirds consensus for removal. Members debated whether “equivalent to” might add more certainty, but finally decided that appropriate wording would be along the lines of “during the term of office….shall be entitled to a salary equivalent to the salary of a High Court judge, and such other conditions as the Independent Commission may determine”. Members discussed whether this Bill should be trying to cater for part-time South African Human Rights Commission members, and, following the request of the SAHRC when its legislation was being amended recently, decided that clarity would be obtained by deleting references to “additional work” and by stating simply that a part-time member of the commission may be paid remuneration as determined by he President. The drafters were asked to suggest options for how the Auditor-General and Public Protector could be described, as they indicated that they were not “members” of constitutional institutions, and on the Long and Short Titles.

Meeting report

State Attorney Amendment Bill: Latest version
Ms Ina Botha, State Law Adviser, Department of Justice and Constitutional Development, tabled the latest version of the State Attorney Amendment Bill (see attached document) in which the changes were highlighted in a larger font.

In the new section 2(1)(b)(i) the phrase “High Court” had been used.

In the new section 2(1)(b)(ii) the inclusion of “advocates” was noted.

The new section 2(3) had a grammatical change, now reflecting “the heads of offices”.

She then highlighted the new section 2(4), as discussed at the previous meeting. This dealt with termination of the post of Solicitor General (SG), should the SG be suspended or removed as a result of disciplinary action taken by the public service. She explained that the SG, State Attorneys and Attorneys appointed under the State Attorney Act (as amended by this Bill) were all to be appointed in terms of the Public Service Act (PSA), and their employment would thus be governed by the PSA and the Labour Relations Act. The Labour Relations Act noted that grounds for dismissal could relate to the employee’s conduct, or capacity, or operational requirements of the employer. Section 17 of the PSA stated that a public service employee was one who held an established post in a department, and Ms Botha reminded the Committee that the Department of Justice and Constitutional Development (the Department) had created these posts through the Department of Public Service and Administration. The PSA specified that dismissal could occur because of incapacity due to ill health or injury, operational requirements, or poor work performance or misconduct. Her concern, as expressed at the previous meeting was that since this legislation covered the new posts, the grounds for termination set out in the Bill should also make mention of these grounds.

She pointed out that although the SG was to be a new post, there were currently State Attorneys already working whose employment would be continued through transitional provisions.

Ms Botha noted that she had also included some alternative options. Alternative 1 captured the previous recommendations, but also referred to grounds referred to in the LRA and PSA, provided due process had been followed, to emphasise that it would not merely be a summary dismissal. Alternative 2 followed a completely different approach: namely to delete the whole proposed clause relating to termination of appointments, so that the law governing the public service alone would regulate this aspect.

Mr S Swart (ACDP) made the point that at the moment all the State Attorneys were public servants, subject to the Labour Relations Act, and wondered how their position differed. He stressed that they should not be placed in any worse position than at present.

Ms Botha noted that the wording on page 5 referred to the appointment of the SG, which would be terminated if a division of the High Court ordered that s/he be struck or suspended from practice. She had never dealt with a case where a State Attorney had been struck off, but she assumed that once the Court had handed down an order of striking or suspension, the Human Resources Division would start proceedings to discharge that person from the Public Service. She said that the instructions given to the drafters were to insert wording that did specifically refer to suspension or dismissal, which meant that the SG appointment would be terminated as soon as that happened. Her concern was that this was not consistent with the public service appointment, which required a public service investigation and decision whether the person should be retained or discharged.

She added that section 17(2) of the PSA referred to incapacity, and two circumstances were set out. She thought that recognition should be given to the fact that the LRA and other legislation required “due process” to be followed, and she had been worried about the apparent conflict and whether an automatic dismissal because of a striking or suspension would be constitutional.

The Chairperson questioned why a decision reached by a court would still have to be followed by other internal processes.

Ms D Schäfer (DA) said that she had two concerns about this new section. Firstly, she raised the point that, as presently worded, the SG would not have to be an admitted attorney or advocate at the time of appointment, since “eligible” was the criterion. If that person had been an admitted attorney, then an admitted advocate, but was not presently on either roll, s/he would not be subject to the professional ethics of either professional body. She thought this undesirable, and suggested that this wording would have to be revised.

Secondly, she agreed with the concerns of the Chairperson. She pointed out that the SG was appointed on certain conditions, and if that person no longer complied, then the conditions would not be fulfilled and that was grounds for termination. Striking by the High Court followed an objective process. The Court, in the Nyathi matter, involving an SIU employee, held that the employee could be dismissed because of failure to comply with an integral term of employment. For this reason, she did not agree with the wording of Alternative 2. Furthermore, she questioned what would be the situation if there was a “corrupt cabal” perhaps involving several members of the Office of the State Attorney; it made no sense to try to place them elsewhere. She asked that the State Law Advisers comment, but would prefer to see the wording left fairly general. At the absolute outside, perhaps all that was needed was a letter to the struck or suspended person, asking if there was any reason why that person should not be dismissed.

Dr M Motshekga (ANC) agreed that nobody should be placed in a worse position, and pointed out that this legislation was intended as part of a transformation process. He agreed with the Chairperson and Ms Schäfer that if a SG or State Attorney was employed to fulfil certain duties, which the fact of striking or suspension would no longer allow, then the whole reason for the employment fell away. He questioned also what the public service disciplinary process could entail. He thought the Court ruling to strike or suspend should serve as a total disqualification.

Mr S Holomisa (ANC) responded to the first point made by Ms Schäfer, and said that it was the understanding of this Committee that the SG must be actually on a roll, and therefore subject to the ethics and code of conduct of either branch of the profession. If that was not clear in the Bill, then the wording must be amended to make that clear.

Ms Botha reminded the Committee that even if the SG was now an advocate, s/he must at some stage have been admitted and practising as an attorney.

Ms Schäfer agreed, but stressed that the Bill should make it quite clear that this person must be on one or other roll currently.

Ms M Smuts (DA) felt that the wording should not be amended. The Bill must specify that if a person was struck or suspended s/he should be removed from the position. She suggested that the removal provision could cover the wording presently under subparagraph (aa), then move directly to what was stated in sub-clause (2), without subparagraph (bb) being included.

Ms Botha explained that Alternative 1 was trying to achieve that.

Ms Smuts thought there was nothing wrong in saying that any removal would be in terms of due process.

Members agreed that Alternative 1 was acceptable.

The Chairperson raised another point, that if the SG was removed, the Minister must appoint another. He wondered if the Minister, particularly in the case where there had been a suspension, needed to be given the express power to appoint an Acting SG.

Dr Motshekga agreed that there could not be a gap during which duties were not fulfilled, but thought that this was implied.

Ms Schäfer and Mr Holomisa believed it was wise for this to be written into the Bill, for certainty.

Ms Kalay Pillay, Deputy Director General, Department of Justice and Constitutional Development, said that acting appointments were governed by the Public Service Regulations, and there was also a policy in the Department.

Mr Mongameli Kweta, State Law Adviser, Office of the Chief State Law Adviser, responded to a question from the Chairperson whether that was binding, to confirm that a policy was not binding on the public, but would bind the Department and its public service employees.

Dr Motshekga agreed that certainty could be created by specifying the acting appointment.

Mr Kweta agreed that it would create more legal certainty. He pointed out the reference to suspension was intended to refer to suspension imposed as a sanction, not one pending disciplinary investigations.

The Chairperson agreed, but said that a “conventional suspension of an SG would create a vacuum because that person could not carry out his or her functions pending an enquiry.

Ms Smuts suggested that this could be simply dealt with by insertion of a new paragraph (v).

Ms Botha noted that the National Prosecuting Authority Act made provision for appointment o an Acting Director of Public Prosecutions if the current incumbent was absent or unable to perform his or her functions, and that wording could apply equally.

The Chairperson agreed and asked that similar wording be inserted into the Bill.

Adv Holomisa, following on from these points, wondered if it was also necessary to make provision for a situation where a State Attorney heading an office was suspended, leaving a gap. The Minister had the power to appoint State Attorneys also.

Ms Botha said that the PSA and Regulations made provision for acting appointments in general. The SG’s position was more sui generis, and she was not sure that it was entirely necessary also to deal specifically with the State Attorneys.

The Chairperson suggested that a simple provision allowing for the appointment of an Acting State Attorney would be sufficient and would give clarity.

Ms Smuts returned to the earlier point made by Ms Schäfer, about the SG having to be on a professional roll.

Mr Holomisa thought that the point had been clarified and Members had agreed to the principle.

Ms Smuts said that it was not specifically said, in the Bill, that the SG should be admitted as an attorney once appointed.

Dr Motshekga responded that the Committee had discussed this already, and had decided that re-admission as an attorney was not a prerequisite to the SG holding the post. The mere fact that at some stage, that person had been admitted and had practised as an attorney was sufficient.

Ms Smuts disagreed. Over and above what was stated as the policy, she believed that the SG must also act in the interests of the client, and comply with the rules of the attorneys’ profession.

The Chairperson noted that presently, subparagraph (iii) referred to having due regard to the ethical norms and standards in the attorneys’ profession. He agreed that this wording could imply that the SG had to apply for re-admission to be covered by this provision.

Dr Motshekga disagreed, pointing out that the profession was in any case moving closer to fusion by the fact that advocates could also take instructions from clients directly, and when doing so were expected to observe the ethical rules of the attorneys’ profession. He also commented that the Legal Practice Bill, once enacted, would cover the position.

Ms Smuts wondered why then there was reference to it in (iii).

Ms Schäfer suggested that a change of wording to “ethical norms and standards in the attorneys’ or advocates’ profession” could rectify the clause.

Ms Botha explained that the Bill accepted that an SG must be either an admitted attorney or advocate. An attorney would have to comply with the rules of the professional body. An admitted advocate (with the necessary prior admission and experience) would be fulfilling the work of an attorney, and that was why the limitation was worded as applying to the attorneys’ profession only.

Dr Motshekga was not sure about that. He felt it was necessary to look at the legal profession holistically. Each branch of the profession complemented the other. Perhaps referring to “the ethical norms and standards of the legal profession” might answer the concerns.

Ms Botha said that there were three different aspects in this clause. Firstly, there was the “fit and proper” requirement, secondly, the entitlement to be admitted, and thirdly, the fact that the SG would fall under the Minister, but that control must be subject to the Minister having due regard to the ethical norms and standards of the attorneys’ profession. The reference to those standards was in fact a check on the Minister.

Mr Holomisa agreed that the intention of these words was to ensure that the Minister did not compromise the SG in any way, and that the integrity of the profession be maintained. He added also that the clause suggested that if the Minister were to appoint an SG who was an advocate, the Minister must ensure that, despite the fact that the SG was no longer an attorney, s/he had not abandoned the ethical norms and standards of the attorneys’ profession.

Members agreed that subparagraph (iii) could remain as presently worded.

Ms Botha reminded the Committee that the word “control” had been removed, as it related to the Minister, and that she would therefore ensure that this reference was also removed from the Memorandum on the Objects of the Bill. She also raised another technical point in relation to paragraph 1.2 of the Memorandum on the Objects of the Bill. This referred to the Department’s ultimate aim to consolidate services, but at this point, the Bill was only aimed at appointing a new Head. She would need to discuss, with her superiors, whether this point needed to be changed.

Ms Schäfer questioned if the proposed new section 2(8) on page 7 of the new document was not too broad, and said that there was a similar provision also on page 10, under the new section 3A(2)(b).

Dr Motshekga thought that the word “any” was intended to allow the Minister to exercise discretion but the “any” duties would be circumscribed by the powers that the Minister had in terms of this Bill. He suggested that there was no problem and this was fairly standard wording in legislation.

Ms Botha noted that the SG and State Attorney were appointed in terms of the Public Service Act, and the Minister could ask that person also to do other duties in the Department. This would be within the ambit of the Constitutional mandate of the Minister. For instance, the SG or State Attorney might be asked to sit as the head of a disciplinary enquiry.

Ms Smuts said that Western Cape Government had raised the question what this meant. She had indicated, at the time, that the broad government policy envisaged that over time the State Attorney may litigate on behalf of the poor (although she was not sure this would happen). She thought it was not a particularly serious point, and she would not like to preclude something that may arise in the future.

The Chairperson added that at the moment, Legal Aid South Africa was doing civil litigation, and it was probably preferable that this should remain with that body. Litigation on behalf of the poor would tend to be more class-action cases, which the Legal Resources Centre was currently handling. Again, should they be moved, he would have thought it more appropriate for Legal Aid South Africa to take them on, if it had budget, particularly since the State Attorney would be acting on behalf of the State.

Ms Smuts said that she saw no reason to change the references at this point.

Ms Schäfer asked why, on page 16, the new section 9A, it was envisaged that the Office of the State Attorney may want to perform duties for other countries, and if this was desired, then she felt that “subject to agreed terms and compensation” should be added in.

Ms Botha reminded Members that Mr Swart had raised that question some time ago. There were provisions about cross-border assistance in the Prevention of Organised Crime Act, and there were various Mutual Legal Assistance treaties. The Department did have a policy of sometimes doing work for other countries, including work done for free.

Members were satisfied with that explanation.

It was agreed that the Committee would vote on the final version of the Bill on the following morning.

Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill
Mr Johan Labuschagne, Principal State Law Advisor, Department of Justice and Constitutional Development, noted that he had prepared a new “Draft 1” document, dated 11 February, which covered most of the discussions from the previous meeting, but a further working document that was comprehensive, and would include today’s discussions, would be ready on the following day. The proposals by the Committee were indicated by strike through for deletions and double-underlining for insertions.

Mr Labuschagne then took the Committee through the draft (see attached document). Clause 2 amended section 2 of the Public Protector Act. As requested by the Committee, the phrase “National Assembly” had been used instead of “Parliament”, in the new sections 2A(5) and 2C and 5C. He noted that similar changes would appear also later in the Bill, in respect of the other Chapter 9 institutions who reported to the National Assembly (NA). He also noted the reference to “the High Court of South Africa” which was its official name in terms of the recently-promulgated Superior Courts Act. As requested by the Committee, the clause that said that the salary should not be “less than” a judge’s had been reworded as “not more than”

The new section 2A now deleted the reference to the Minister (of Justice and Constitutional Development), although the reference to the Minister of Finance remained. As a principle, this had been done also for the other institutions covered in the Bill, although Mr Labuschagne pointed out that the reference to “Minister” did, in some other cases, refer to the Minister who was responsible for implementation of each Act.

In the new section 5A, the reference to the Deputy Public Protector, and the necessity to consult with the Minister, had been deleted. 

Mr Labuschagne moved on to the changes to the Human Rights Commission Act. Similar changes were noted in respect of the replacement of the reference to “Parliament” with “National Assembly”. Again, the consultations were only to be done with the Minister of Finance, under the new section 13(6)(b)

Ms Schäfer asked where the reference to the Minister of Finance appeared, and it was indicated that an option was included for removal.

Moving to the changes for the Commission on Gender Equality legislation, Mr Labuschagne pointed out that the amendment Act had recently been signed, and presumably came into operation on the date of signature, since nothing to the contrary was stated, and a reference to Act 17 of 2013 was now included. Since the Minister of Justice and Constitutional Development was no longer referred to in the Act, that definition was being removed from section 1 of the CGE Act. However, on page 8 he indicated that the words “the responsible Minister” were also being removed, in line with the principle that these Ministers should not be consulted any longer on remuneration issues. That was noted under Option 3, to amend section 8(3), and also under section 8(6)(b).

Mr Labuschagne reported that page 9 of the new draft set out the amendments to the Electoral Commission Act. The Minister for Home Affairs administered this Act, but the reference to that Minister was now being deleted from the new section 7(2A). The phrase “National Assembly” was substituted for “Parliament” in section 7(2)(b).

Mr Labuschagne noted that the Committee had decided that the Independent Communications Authority of South Africa (ICASA), Public Service Commission and Financial and Fiscal Commission should be included in the Bill. He was still working on the wording to amend their legislation.

Mr Labuschagne then pointed out that he had prepared two options for the definition of “Constitutional institution”.

He reminded the Committee of its instruction to remove the references to the Deputy Public Protector from the definitions (but still refer to this person under the appropriate Act). This was now reflected under Option1 for the revised section 1 of the Independent Commission for Remuneration of Public Office Bearers Act. Under option 2, the definition of Public Protector and Deputy Public Protector were deleted and “constitutional institution” was said to mean “the Public Protector, the Auditor-General and any commission established under the Constitution, including ICASA as referred to in section 192 of the Constitution. He explained that ICASA had to be separately named because it was not a commission.

The Chairperson asked where the Financial and Fiscal Commission references appeared.

Mr Labuschagne said that it was a commission established in terms of the Constitution, in section 220(1).

Ms Smuts thought the second, simpler option was better, which read: “’Constitutional Institution’ means  any independent constitutional institution, including the Independent Communications Authority South Africa referred to in section 192 of the Constitution.”

Mr Labuschagne raised a technical point on this wording. Section 192 did not actually set up ICASA but rather referred to the fact that national legislation must establish an independent authority to regulate broadcasting. It did not refer to ICASA specifically. He asked if the Committee wished to refer specifically to ICASA, or merely to “the independent authority to regulate broadcasting” (or “the broadcasting authority” as it appeared in section 192(5))The State Law Adviser had not had an opportunity yet to look at the amendments but he submitted that they were in order.

The Chairperson thought that naming ICASA as such would be acceptable.

Ms Smuts indicated that she would have no problem if ICASA was named, but pointed out that this had been the subject of much heated debate between herself and the Department of Communications some years ago. There was an old debate whether ICASA in fact enjoyed the same degree of Constitutional independence as other Chapter 9 institutions, because it was not cited in section 181(5). Section 192 had been drafted late in the negotiation process to the new Constitution. She believed that the reference in that section to “an independent authority” made it in fact no different from the section 181 institutions. She had at one stage asked the Constitutional Review Committee (CRC) to propose an amendment to the Constitution, to bring it in line with developments in the field. She explained that in 1996 there was not yet convergence in broadcasting, but subsequent developments meant that it was no longer possible to separate out broadcasting and telecommunications. However, the laws rested still on the old Broadcasting Act and old Telecommunications Act. She had suggested that CRC that it would be logical to amend section 192 and refer to “electronic communications” instead of “broadcasting”, but although the CRC accepted that, the Department of Communications had hotly contested it, and the matter went no further. She said that in fact, ICASA was the successor to the Independent Broadcasting Authority, and incorporated also the old Telecommunications Authority SATRA. Because Chapter 9 of the Constitution referred to the “broadcasting authority” the State Law Advisers may well prefer to use the same words. She would accept either description.

Ms Schäfer said that perhaps more correct descriptions would be either “ICASA, as established in terms of section 192” or “ICASA as provided for in section 192”.

Mr Labuschagne said that the State Law Advisers and he would discuss the issue and report back to the Committee.

Mr Labuschagne repeated that the amendments that were now needed by the Committee’s decision to include ICASA and the Public Service Commission were not as simple as he had thought earlier. The ICASA Act provided for the establishment of ICASA, which was to act through a Council established in section 5 of that Act. This indicated that ICASA did not actually consist of “members”, but a Chairperson and eight others appointed by the Minister, who also determined their salary.

The Chairperson noted that this would not happen any more if ICASA was included in the Bill.

Ms Smuts said the setting of the salary by the Minister was offensive to the independence of the Council, and reiterated her points that this was one area where the largest salaries were needed to attract the right people. ICASA councillors were actually appointed following similar processes to those for the commissioners of the South African Human Rights Commission, including interviews by the relevant portfolio committee, so she believed that to all intents and purposes, they were members of a constitutional institution. She suggested that Mr Labuschagne not worry about the technicalities.

Adv Holomisa reminded the drafters that the Long Title would need to be amended, to refer also to the latest changes to the Bill, including the ICASA matter. He wondered if the Department or Minister of Communications would have to be consulted.

The Chairperson said that the only amendment to the ICASA Act was that the Minister would not longer determine the salaries of the Council.

Ms Smuts said that there was no necessity to deal with it any differently to the other institutions.

Mr Holomisa was raising the point because he thought that the other ministries affected by the Bill as originally drawn were presumably consulted.

Mr Labuschagne said that all the Chapter 9 institutions were consulted, he thought by the Minister of Justice and Constitutional Development. He reminded the Chairperson that when the Committee asked that the Financial and Fiscal Commission, Public Service Commission and ICASA be included in the Bill, he had been asked to prepare a draft letter (for signature by the Chairperson) to those institutions. He took Mr Holomisa’s point that it might be advisable to inform the Ministers who were administering the Acts of the new provisions.

The Chairperson said that no permission was being sought and it was merely a courtesy.

Ms Smuts did not understand the concerns for the Minister, saying that the Independent Commission would be consulting only the Minister of Finance, and the National Assembly would approve the remuneration.

Mr Holomisa repeated that it was common courtesy to inform a Minister when certain responsibilities were to be taken away.

Ms Smuts confirmed that there was nothing wrong in writing to the Minister, but she did not understand the assumption that the Minister of Communications had not received the same notification as the others.

Mr Labuschagne noted that the Committee had indicated that it preferred the second option for the definition. This being so, he moved on to point out that the revised definition of “office bearer” in (f) made specific reference to any member of a constitutional institution, including Deputy Public Protector. He suggested that this should now read “any member of an independent constitutional institution, including the Deputy Public Protector”, to be consistent with option 2 on page 10.

Members agreed to this.

Mr Labuschagne moved on to page 13, which set out the revisions to section 14 of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act. He pointed out that in the new section 14(1)(b) and 14(1C)(b), the word “Parliament” was substituted with “National Assembly”. The reference to the Minister being consulted had been deleted from the revised section 14(1A).

In respect of the Public Audit Act, he pointed out similar changes of “Parliament” to “National Assembly” in sections 7(1)(b) and 7(1C) of the Public Audit Act. The wording in respect of the salary of the Auditor-General, in the revised section 7(2)(b), was also changed, to read “not more than that of a judge of the High Court of South Africa”.

Mr Labuschagne told the Committee that he was still pondering a suitable Short Title for the Bill. As indicated by Mr Holomisa earlier, the Long Title would also need to change now that the three other institutions were to be specifically included. Although he was still working on the provisions for their Acts, he did not feel that there were too many complex points.

Ms Smuts said that the whole Bill was very simple and suggested that it was not necessary to spend too much time on it. She wanted to speak to the point that both the Public Protector Act and Public Audit Act were essentially benchmarking the salaries, now saying that they should be “not more than” a judge’s. She understood why the proposal was being made, but she still thought it improper. The original reasoning was that these two positions were different from the others because the incumbents were watchdog institutions, who had to be elected by 60% of Parliament and be removed by two-thirds of the NA. However, she felt that the wording “not more than” sounded wrong, and wondered why “the same as”  or “equivalent to” were not used.

Dr Motshekga recalled the debate around “not more” and “not less” and thought that consensus had been reached. The current formulation was important because it recognised that individuals were not the same, and may have more or less experience, justifying a divergence in salary. He did not feel it necessary to open the debate.

Ms Schäfer recognised the merit in Dr Motshekga’s argument, but noted that “the same as” would give more certainty. She also wanted to stress that Mr Johan de Lange from the Department of Justice and Constitutional Development had cautioned against using the word “remuneration” in relation to judges, because this was very difficult to assess and said that if there was a decision to benchmark then it should be against a judge’s “salary”.

Mr Labuschagne said that the Public Protector was entitled to remuneration and other terms and conditions of employment; He wondered if this provision might not affect matters such as a housing allowance. He said that he would have to re-draft the provision if the Committee made that decision

The Chairperson said that re-drafting was not a problem.

Ms Schäfer said that perhaps the correct wording should be “the total remuneration of the Public Protector must be no more than the salary of a High Court judge”. There was a distinction between salary and total remuneration package of the judge.

Ms Christine Silkstone, Content Adviser to the Committee, said that she would check on what exactly was included in judges’ remuneration but made the point that judges were appointed for life, so they could be drawing on their total package until they died, rather than for a fixed term.

Dr Motshekga was not sure whether the Committee had not erred in reaching that earlier decision. He wondered if the scope of “salary” (for the Public Protector) must include other benefits.

Ms Schäfer added that to use the wording “equivalent to a High Court judge” might suggest that the Public Protector should also receive a salary for life.

Dr Motshekga thought that it was not intended that the Public Protector have the same benefits as a judge, as their situations were not comparable, and that was why “salary” was used.

The Chairperson said he was reminded of the earlier discussions around benchmarking.

Ms Smuts questioned if this Committee should be trying to include any benchmarking at all. The job of determining remuneration was being given to the Independent Commission and it was surely up to this Commission to do the comparative work.

The Chairperson said that this did not deal with the request from the Standing Committee on the Auditor-General, who had admitted that it had been mistaken when drafting the clause about the Auditor-General’s remuneration and had asked that this Committee help to put it right.

Ms Smuts felt that benchmarking should be abandoned altogether.

Ms Schäfer suggested that if the Committee were to keep it, then the wording could read “During the term of office the Public Protector shall be entitled to a salary equivalent to the salary of a High Court judge, and such other conditions as the Remuneration Commission may determine”.

The Chairperson said that this raised the question of benchmarking again.

Dr Motshekga said that if this was not done, it simply amounted to this Committee “passing the buck” and another committee or commission might have similar problems as in the past.

Ms Schäfer felt that if total remuneration of the Public Protector was stated as equivalent to salary of a judge, it might amount to a drop. She suggested that the Independent Commission should be able to decide whether, for instance, a car allowance be added.

Mr Labuschagne suggested that the same wording should then be applied for the Auditor-General.

Ms Smuts wanted to raise her concerns about this Bill trying to cater for part-time members of the South African Human Rights Commission (SAHRC). She did not think that it was possible, for the determination of remuneration would not be an annual exercise. She wondered if it was reasonable to ask the Independent Commission, which was somewhat removed from the day-to-day running of another institution, to determine what a part-time member could be paid for performing “additional duties and functions”. She thought this similar to doing piece-work. She felt that the annual salary only of full or part-time commissioners could be handled by the Independent Commission.

MR Labuschagne said that both the current Act and the Bill recently passed by this Committee in relation to the SAHRC had said that a commissioner performing additional functions would be paid such additional remuneration as determined by Cabinet and the Minister of Finance.

The Chairperson said that this also had left the Committee uncomfortable.

Ms Smuts repeated her view that the Independent Commission should be determining the salary, only, and not any piece-meal work and additional functions. She asked what the additional functions were, and suggested that perhaps a flat rate per hour might be established.

Ms Schäfer agreed that there should be standard rates, for it was not possible to determine what functions the President may require, during a particular period.

Mr Labuschagne said that those additional functions could differ – for example, a commissioner may be asked to do research, attend a course, or present a course, and there was difficulty with the flat rate. He questioned if they should get additional pay.

The Chairperson agreed that it was not clear to anyone what the additional functions would entail.

Dr Motshekga pointed out that at times the part-time commissioners may have more work than at other times and he felt that the work probably balanced out over a period.

Mr N Seleka, State Law Adviser: Constitutional Development Unit, Department of Justice and Constitutional Development, said that National Treasury would calculate annual increments (per hour) for part-timers and they would be paid only when they were working.

Ms Silkstone said that if someone was appointed to do work for perhaps three to six months, it would probably be more economical to have a set amount, rather than per day. At the moment, SAHRC commissioners could be paid R3 392 per day.

Dr Motshekga pointed out that in business, there would be arrangements that attendance of a particular meeting would be paid at a set amount. If a “salary” was to be fixed, there was room for members to demand larger amounts and benefits. He thought paying for work done was much fairer overall.

Ms Schäfer said that the main problem was that section referred to “additional remuneration”. She suggested that perhaps section 13(6) should be revised to state: “A part-time member of the Commission may be paid remuneration as may be determined by the President”. There was no need to refer to approval of the Commission, nor to include the rest of the wording presently in the section.

Mr Labuschagne said that this might be to their disadvantage if they could no longer be paid “additional remuneration”.

Dr Motshekga agreed that the parts of the section that Ms Schäfer thought could be deleted were unnecessary.

Mr Holomisa referred to the fact that part-time Commissioners could have slack and busy periods and said that they were actually doing “work”, and not “additional work”.

The Chairperson agreed.

Ms Smuts referred to the SAHRC’s comment on the SAHRC Amendment Bill, which stressed that there was no common understanding of the terms and conditions around appointment of the part-time commissioners. It was subject to individual interpretation and it was not certain what the “additional duties and functions” were. The SAHRC recommended that the Independent Commission should bring clarity.

The Chairperson said this would accord with what was being suggested.

Mr Labuschagne indicated to the Chairperson, in answer to a question, that the role of the Minister of Justice was being removed also, as set out in the Option for (b) on pages 6 to 7.

Mr Holomisa noted that there had been concerns from the Public Protector and Auditor-General that they were not “ members” of constitutional institutions, and wondered if “heads and members of” would suffice.

The Chairperson asked the drafters to come up with some options on that point.

The Bill would be discussed again on the following day.

The meeting was adjourned.


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