The Department of Justice and Constitutional Development tabled and took Members through the latest version of the Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill, dated 21 February. The drafters had sought to achieve consistency in wording across the various pieces of founding legislation for the Chapter 9 institutions, which this Bill was amending, and many of the options still reflected (at the request of the Committee) were concerned with that. Members concentrated on the substantive changes. The Committee had already approved the change of title of the Bill to ”Determination of Remuneration of Office Bearers of Independent Constitutional Institutions Laws Amendment Bill”, since the Auditor-General and Public Protector were not “members” of constitutional institutions. The name of the Commission for Gender Equality Act (CGE) had been changed. There were also new clauses reflecting the inclusion of the Independent Communications Authority of South Africa (ICASA) under the Bill, and this necessitated a change in the Long Title. In general, the harmonisation of terminology referred to “remuneration, allowances and other terms and conditions of employment”. Clauses 5 and 8 related to the position of part-time members of the South African Human Rights Commission,. Commission for Gender Equality and Electoral Commission, and it was made clear that the part-time members would also have their remuneration, allowances and conditions determined by the Independent Commission, and not any longer through any special procedure. The amendments being introduced to the ICASA Act included the fact that any notice in relation to the remuneration would be submitted to the “National Assembly” and not “Parliament”, because the National Assembly played a role in the appointment of the councillors. A new provision was inserted into the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act, as a new section 14(1)(b) that remuneration, allowances and other terms and conditions may not be adversely altered during the members' terms of office. Clause 15 also contained a provision similar to this, as a new section 7(2A) in the Public Audit Act, but Members asked that the wording be changed to reflect “term of office” rather than “ continuation in office” and asked also that this be done consistently throughout the Bill. They also asked that this new subsection be checked against the existing section 7(3).
The drafters and State Law Advisers indicated that late on the previous day, the question had been put to them whether in fact the Independent Commission had the power, in terms of its own Act, to make recommendations on “conditions of employment” since its own founding Act, in section 8(4) referred to recommendations on “salary, allowances and benefits”, but did not refer to conditions of employment and conditions of office. Members discussed what “conditions of employment” and “conditions of office” might include, and said that these terms were in themselves unclear. One Member made the point that conditions of service had been a sore point at the Chapter 9 institutions, and the lack of certainty, particularly in regard to roles and day-to-day responsibilities, had given rise to tricky situations. She suggested that perhaps section 8(4) of the Independent Commission's own Act should be amended to indicate that any determinations should also be subject to enabling regulations made by the Chapter 9 bodies themselves, as this would not interfere with their independence. The Chairperson took her point, but said he was not sure whether that change should be effected through this Bill, and whether it did not perhaps require changes to the founding legislation of the institutions. Members were asked to consider again whether the standard wording used in the current draft was then appropriate. The Parliamentary Law Advisers noted that at present, the Standing Committee on the Auditor-General had the power, in terms of the Public Audit Act, to make recommendations also on issues of leave, office hours and similar matters, but in practice left this up to the Office of the Auditor-General. It was a matter of policy whether Parliament wanted the Independent Commission to deal with those kinds of matters. The drafters undertook to revert to the Committee on that point on the following day, after further consideration, and it would also be necessary to consider who might be deputised to speak on behalf of all members of the institutions, with input from the Parliamentary Legal Advisers who were asked to research the position in countries with similar provisions. Finally, the drafters were asked to consider whether the “user pays” principle applied to the Office of the Auditor-General might be impacted by this Bill.
Members briefly dealt with Ms Schäfer's Private Member's Special Investigating Units and Special Tribunals Amendment Bill. She noted that she had advertised the Bill but no comments were received. She had had the opportunity to make a presentation. She believed that her Bill would avoid the situation that had arisen recently, and contained a sensible proposal to avoid abuse of the system. The Head of the Special Investigating Unit was present at the meeting, but advised that since the Bill did not directly concern the work of the Unit, but the appointments process, the Unit was not in a position to comment on it. The Department of Justice and Constitutional Development had taken a policy decision not to comment on the merits of a Private Member's Bill prior to the Committee considering the Motion of Desirability. An ANC Member believed that the Bill primarily tried to address a historic situation that no longer pertained, but Ms Schäfer countered that whilst it was influenced by that historic matter, it was not limited to it and was designed to ensure that the situation would not again recur, to give Parliament better oversight over Presidential appointments and to ensure that extended vacancies could not exist. In the absence of a quorum, no final decision was taken.
Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill: Version dated 21 February
The Chairperson told the drafters that he had recently had a question put to him as to how the Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill (the Bill) might affect the “user-pays” principle that applied to the Office of the Auditor-General (AG), since the bulk of its money came from departments paying for its services. He did not expect an answer now but asked the drafters to give some consideration to that point.
Mr Johan Labuschagne, Principal State Law Advisor, Department of Justice and Constitutional Development, noted that the AG’s salary may then be drawn not only from the Department of Finance but from other departments also.
The Chairperson said that he did not think this prevented the salary from being pegged at a particular level.
Mr Labuschagne then tabled a new version of the Bill, dated 21 February, and took Members through the changes. He noted that this version still contained quite a number of options, some of which the Committee had taken a final decision on, but the Chairperson had requested that the options still be displayed.
The Committee had already approved the change of the title ”Office Bearers of Independent Constitutional Institutions Laws Amendment Bill”, reflected on page 1, and he reminded Members that this option was chosen since the Auditor-General and Public Protector were not “members” of constitutional institutions in the same way as commissioners of the independent commissions.
Throughout the Bill Mr Labuschagne had tried to harmonise terminology in relation to remuneration, conditions of employment, allowances and service benefits and he would point this out as he went through, but did not intend to read through every changed clause in detail.
On page 2, a new Option 2 was inserted to correct the name of the Commission for Gender Equality Act (CGE) because the short title of that Act had been amended in the meantime.
He had also included amendments reflecting the inclusion of the Independent Communications Authority of South Africa (ICASA) Act, to ensure that it would also be subject to the Bill. He pointed to the middle of page 3, where this was reflected as an option. The Long Title was also changed to reflect the amendments to the ICASA Act. All the options on page 3 were to harmonise terminology.
On page 4, he noted that “conditions of office”, which had been the wording used in respect of the South African Human Rights Commission (SAHRC), had now been changed to “conditions of employment” to bring that also in line with the others.
The harmonisation of terminology continued on page 5, at clause 2, which now set out the changes to the sections, in each founding Act, that dealt with remuneration and conditions. This Bill now sought to have standardisation and to refer to “remuneration, allowances and other terms and conditions of employment”. He particularly pointed out that the words “allowances and service benefits” which had originally been contained in the Public Protector (PP) Act was also changed. Similar changes were made also on page 6
Clause 3 sought to standardise the wording also in respect of section 2A of the Public Protector Act, which dealt with the position of the Deputy Public Protector.
Mr Labuschagne suggested at this point, and the Chairperson and Members agreed, that rather than pointing out every change over the next few pages, he should rather concentrate on the substantive changes that were not effected merely for harmonisation.
Clauses 5 and 8
Mr Labuschagne reminded the Committee of its previous decision that the conditions around remuneration of part-time members, where these had applied, should be deleted. The SAHRC Act was therefore being amended, by clause 5, so that section 13(1) of that Act now referred to “the full-time and part-time members of the Commission”. Originally, section 13(3) of that Act had dealt with the remuneration of part-time commissioners, but this was deleted. The Commission for Gender Equality (CGE) Act had also contained similar provisions, and now section 8(1) was amended by a reference to “the full-time and part-time members of the Commission”, and, on page 12, the option was reflected that would delete section 8(3) of that Act which had set out a special procedure for part-time members.
Ms D Schäfer (DA) asked how exactly the new wording in that subsection would deal with part time members.
Mr Labuschagne replied that the earlier subclause stated that part-time members would also have their remuneration determined by the President, after taking into consideration the recommendations of the Independent Commission.
Ms Schäfer accepted that, but did not really see the point of the other provision. She asked if other Members thought the position of the part-time commissioners was sufficiently covered as well as the fact that they would have to be dealt with by the Commission.
The Chairperson thought the provisions were similar.
Renumbered clause 6 (previously clause 8)
Mr Labuschagne pointed out that similar wording was now included for the Electoral Commission Act,
New Clauses 10 and 11 on pages 19 -20
The new clauses dealt with the position of ICASA. It was now proposed that section 10 of the ICASA Act be substituted with a new section in line with the other Chapter 9 institutions process. The Committee had a long discussion on the question to whom these institutions or commissions were accountable, and it was decide that all the Chapter 9s were accountable to the National Assembly (NA). In the proposed section 10(5), it was suggested therefore that the notice in relation to the remuneration should be submitted to the National Assembly for approval, and not to “Parliament”. He pointed out that the NA played a role in the appointment of Councillors of ICASA. For instance, section 5 of the ICASA Act said that the Council consisted of the Chairperson and eight other councillors. That was why it was stated that the determination of the benefits should also fall to the National Assembly.
Clauses 12 and 13
Clauses 12 and 13 dealt with the changes to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRCRLC) Act. The changes to sections 1 and 13 largely reflected the harmonisation that he had referred to earlier. However, it was necessary to insert a provision also, to bring it in line, that the remuneration may not be reduced, nor may allowances and other terms and conditions of employment and service benefits be adversely altered during the members' term of office, and that was reflected as a new section 14(1)(b).
Mr Labuschagne indicated the new proposals on the Auditor-General to amend the heading and content of section 7 of the Public Audit Act. In addition, there was a proposal to add in a new section 15(2A), that the remuneration of the AG may not be reduced nor may other terms be adversely affected “during his or her continuation in office”.
Ms Schäfer asked why “continuation of office” was used, and not “term of office”, which had been used elsewhere.
The Chairperson agreed with her.
Ms Schäfer added that the phrase “continuation of term of office” was not only inconsistent, but could create confusion as to whether it would apply not to the current term, but an extended term, and whether it should apply to the first term.
The Chairperson asked that “term of office” be used instead, throughout the Bill.
Conditions of employment
Mr Labuschagne said that late on the previous day a question had been raised, which he and the State Law Advisers had only had a chance to discuss briefly, as to whether the Independent Commission had the power, in terms of its own founding legislation, to make recommendations on “conditions of employment”. He said that its founding legislation seemed to limit it to making recommendations on salary, service benefits, upper limits of salary and resources necessary to enable an office bearer to perform the functions effectively, but probably not on conditions of employment and conditions of office. He would like the chance to discuss this point further with the State Law Advisers and undertook to give a final answer on this on the following day. It may be that another amendment was needed to the Independent Commission's Act.
The Chairperson asked whether conditions of office might extend to details such as whether the offices wanted a particular model of photocopier.
Mr Labuschagne agreed that there was also debate on what “conditions of office” covered – though he suggested that this was probably working hours or days of leave. He read out the relevant section 8 of the Independent Commission for the Remuneration of Public Office Bearers Act, which said that it may perform powers and duties under this Act and any other law. Section 8(4) said that the Commission shall, after taking into consideration certain facts and recommendations “concerning the salary, allowances and benefits of any office bearer...” but nothing was said about “conditions of employment”.
Ms Schäfer said that the Committee had not really considered that point earlier. She thought perhaps the Committee needed to pay closer attention to the wording of the Independent Commission's founding Act, before amending all the other founding legislation for the bodies covered by this Bill.
Ms C Pilane-Majake (ANC) said that this had, historically, been a sore point in the Chapter 9 institutions. There was much uncertainty as to conditions of services at the moment. Perhaps, even if it was not covered in the Independent Commission's Act, section 8(4) of that Act needed to be amended to indicate that any determinations should be subject to enabling regulations, and those regulations could then talk to the conditions of service. That would require the Chapter 9 institutions themselves to formulate conditions and have them gazetted.
The Chairperson said that the Committee was trying to understand how “conditions of employment” would be interpreted and whether this meant that persons would be able to demand all sorts of different things.
Ms Pilane-Majake said that she had not been intending to include, for instance, requests for particular office equipment, because she thought that this would be taking matters too far. She said that the more contentious point at the moment related to conditions of service, rather than conditions of employment. She understood that to refer to what the office bearers were expected to do on a day to day basis. This was not covered in most of the Chapter 9 legislation as it currently stood, and that should be done.
Mr Labuschagne said that this Committee had had a similar debate previously. It would be difficult to set out a list of what exactly fell under “conditions of service”. He drew attention to section 219(5) of the Constitution, which said national legislation must be established for the “salaries, allowances and benefits” of the Chapter 9 institutions. Maybe that wording should be followed, in which case all the options that he had put forward this morning would need to be amended. Some of the existing Acts at the moment also referred to “conditions of office” or “conditions of employment”.
The Chairperson said that indeed Ms Pilane-Majake had made a relevant point, but he was not quite sure where it could be best accommodated.
Ms Schäfer agreed that if the same wording appeared in the Constitution and the Independent Commission's Act, then reference to conditions of service and employment may not be apposite, and the danger was also that if they were referred to, they may start encroaching on the independence of the other institutions. She did not think, in principle, that the Commission would be willing anyway to enter such debates if it was not empowered to do so.
Ms Pilane-Majake said that she would not press the point, but wanted Members to note that it was a grey area and there was confusion in the Chapter 9 institutions over the roles, and if their Acts were not amended it could cause problems. This was more the case with the full-time than the part-time office bearers and that was why she had suggested having enabling regulations, which would not affect the independence of those institutions, as they themselves would be able to decide how to deal with the matters.
The Chairperson thought that perhaps at some point, when dealing with the Chapter 9 institutions in the course of the following Parliament, the new Committee should address those issues. He agreed that there had been problems, citing one instance where the Committee had needed to intervene to clarify the role and mandate of a Chief Executive Officer, and who should be “the face of” the particular Commission. However, he reiterated that he was not sure that such a provision should be included in this Bill, but would be more properly located in the founding legislation of the Chapter 9 bodies.
Ms Xoliswa Mdludlu, Principal State Law Adviser, Office of the Chief State Law Adviser, said that the Public Audit Act did not have a remuneration provision, but, in its initial formulation of section 7(1) had referred to “conditions of employment, including an appropriate salary, allowances and other benefits”. This was being changed in this Bill, to bring it in line with other legalisation being amended. She reiterated the point made by Mr Labuschagne that it was difficult to assess exactly what the “conditions of employment” entailed. The State Law Advisers indeed needed to apply their minds to this and think of the consequences.
She added that section 8 of the Independent Commission's Act said that the Independent Commission may exercise powers and perform duties entrusted by “this Act, section 219 of the Constitution or “any other law”. The Independent Commission would thus need to have regard to what each of the other specific Acts would provide, so its powers were linked directly to that other legislation.
Mr Labuschagne wondered if the Parliamentary Law Advisers were in a position to express a view, as it would be useful to get as much input as possible.
Mr Frank Jenkins, Senior Parliamentary Law Adviser, said that the position of Auditor-General was quite unique because the Public Audit Act was drafted between what was then an ad hoc committee and the Office of the AG. Section 7 of that Act allowed the oversight body (the Standing Committee on the Office of the Auditor-General, or SCOAG) to make recommendations also on issues of leave, office hours and so forth, so it went quite far. However, in practice, these kinds of matters were in fact dealt with by the Office of the AG itself, whilst the SCOAG looked at conditions of employment such as salaries, allowances and other benefits. He suggested that in practice this seemed to work well. He agreed that the phrase “conditions of employment” was quite far-reaching. There was also a policy question to be decided as to whether Parliament wanted the Independent Commission to deal with that, and whether that was the appropriate level of decision-making. Section 219 of the Constitution referred to “salary, allowances and other benefits”, and including anything else would go outside the ambit of this wording. He reminded Members that at one point there had been a discussion between the Secretary of Parliament and the Moseneke Commission as to whether the types of cellphones provided to MPs fell under that Commission, and it was decided that such decisions definitely fell outside its powers.
Ms S Shope-Sithole (ANC) confirmed, as she was also a member of the SCOAG, that in practice the Committee did leave certain matters up to the Office of AG.
Mr Labuschagne quipped that he had not intended to spark such contentious debate, but it came out of a question raised to him on the previous day, and he would consider it further and revert to the Committee on the following day.
Mr Jenkins added that he had gone briefly through the new draft, and had noted that there was a suggestion that the remuneration could not be changed during the term of office of members; he wanted to refer to the Public Audit Act and said that he thought that because this formed part of a contractual arrangement, the remuneration could be changed with the written consent of both parties.
Ms Schäfer corrected him and said that whilst the remuneration could not be reduced, the Bill did not say that it could not be “changed”.
The Chairperson quipped that nobody would give written consent to having his or her salary reduced.
Mr Jenkins said that he had raised this point because the question had been raised a few years ago whether remuneration could be increased during the term of office, with the written consent of the parties, and he understood that this could be done.
Ms Christine Silkstone, Content Adviser to the Committee, wanted to speak to the Public Audit Act changes as set out on page 25, and said that if the Committee was to accept Option 2, for the insertion of a new subsection 7(2A), then it would be necessary to look again at the wording of section 7(3) of the Public Audit Act, which already contained similar wording, to ensure that there was no inconsistency or duplication.
The Chairperson said that he wanted to be “mischievous” and raise a point on approaches to the Independent Commission. As an individual MP, he was not allowed to approach the Independent Commission, because the principle had been adopted, when the Commission was first set up, that individuals were not allowed to speak for themselves, but instead a small delegation of Chief Whips and others would be sent to argue the case for all MPs. He was not sure who would speak before the Independent Commission for the AG. He asked who appeared before SCOAG at the moment. The same would apply for the Public Protector, and he wondered what principle would be applied to the commissions as well.
Mr Jenkins said that when determinations were made for judges and magistrates, under that relevant legislation, the Chief Justice was deputised to represent the judiciary, including the magistrates, simply because this carried implications on how to keep the independence of the judiciary. The same applied to Parliament. In the case of the AG, at the moment the Chief Executive Officer of the Office of the AG would put the argument to the SCOAG, although the Public Audit Act clearly envisaged that the final negotiations would be between AG and the SCOAG, with that latter committee then making the recommendation to the President. He suggested that this needed to be made clear in all the founding legislation. He would like to look more closely at the amendment of section 7(3) of the Public Audit Act, and consider whether a delegation would be sent to the Commission from all the bodies. It was necessary to be quite clear and he suggested that perhaps the legislation needed to set out clearly not only how the procedure would be done, but by whom. It could be clearer if, perhaps, the legislation was to specify that the Chairpersons of the Chapter 9 bodies should be deputised to speak on behalf of all members.
The Chairperson made the point that although the magistrates had been represented by the Chief Justice, they were still disgruntled and claimed that the Independent Commission had failed to listen and consider the matter properly. He had no doubt that many MPs were also not happy with the final decisions, and he reminded Members that some years ago, then-President Mandela had announced that no increases for MPs would be allowed at all. Magistrates who were unhappy should raise their concerns with the Chief Justice, and MPs with their Presiding Officer. He was not sure if further amendments were needed to set out how exactly the process should be done, and whether this would not open the floodgates for objections to the Independent Commission.
Mr Jenkins said that perhaps it was necessary to consider how this was being done at present, at the various bodies, and how exactly the Financial and Fiscal Commission and others would operate vis-à-vis that Independent Commission.
Ms Shope-Sithole suggested that perhaps it would be useful for Mr Jenkins to research countries with similar systems, and report back on how they handled this.
Ms Pilane-Majake said that she would play devil's advocate and wonder if it was necessary to have a different situation in relation to the AG.
Mr Labuschagne reported that he would report back to the Committee on the following day in regard to conditions of employment. However, he could not yet prepare a new working document. He asked for clarity whether the Committee wanted him to prepare amendments to each of the pieces of founding legislation, allowing for regulations on conditions of service, or whether this should also stand over until after the Committee had discussed this on the following day.
The Chairperson agreed that the preparation of any further amendments should stand over until after the discussions.
Ms Shope-Sithole asked if Mr Jenkins was being asked to do research into other countries.
The Chairperson said that there were not many countries with systems like that in South Africa, so it should be fairly easy for Mr Jenkins to do that, and the input would be useful.
Mr Labuschagne pointed out that there were still a few other options on which the Committee needed to take a decision, but assumed this would be done once the Committee reached a stage where it was going through each clause of the Bill.
Mr Labuschagne was excused at this point.
Ms Schäfer's Private Member : Special Investigating Units and Special Tribunals Amendment Bill
The Chairperson asked Ms Schäfer if the requirements for her Private Member's Bill had been fulfilled.
Ms Schäfer said that she had advertised the Bill, but no comments had been received. She had been given an opportunity to make her presentation. She reiterated her view that the amendments that she had proposed would avoid a recurrence of the problems that had arisen over the last two years in the Special Investigating Unit (SIU) and she thought that her private member's Bill contained a sensible proposal to avoid abuse of the system, particularly given the high levels of corruption in the country.
The Chairperson noted the presence of Adv Soni, Head of the SIU, and other representatives, welcomed them and invited them to address the Committee on the Bill, if they wished to speak.
Mr Johan de Lange, Principal State Law Adviser, Department of Justice and Constitutional Development, said that the Department, as a matter of policy, had decided not to comment on the merits of a Bill prior to the Committee considering the Motion of Desirability, and thus would refrain from making any comment at this point.
Adv Vasantrai Soni, Head: Special Investigating Unit, said that although the Bill concerned the SIU, his difficulty, as discussed with others at the Unit, was that it was not a matter that actually dealt with the work of the Unit, and because of this, SIU did not consider it appropriate to make any comments at this stage.
The Chairperson noted that the Members had had ample opportunity to read the clauses of the Bill by now and did not think it necessary for Ms Schäfer to take them through the Bill again.
Mr J Sibanyoni (ANC) said that having read the Bill, he believed that it tried to address a situation at a particular time in the past, which was no longer relevant currently. This, to his mind, did not differ substantially in intention from the Private Member's 18th Constitution Amendment Bill, which was also drafted in response to a particular situation at a particular time in the National Prosecuting Authority.
Ms Schäfer wanted to place on record that whilst this Bill was indeed influenced by what had happened in the past, it was not an attempt to address that past situation only, but was rather designed to make sure that such problems could not happen again. The intention was to change very small things to make a large impact on the potential for a recurrence of the problems. She suggested that it would be remiss for this Committee not to approve the Bill. It provided for more oversight by Parliament over the President’s appointments and would ensure that vacancies could not exist for an extended period of time.
The Chairperson suggested that the matter should stand over to the meeting on the following day, when there would be a quorum. He asked the Whip to ensure that sufficient Members were present on the following day, both to deal with this Private Member's Bill and to give instructions to the drafters on the Bill discussed earlier.
The meeting was adjourned.
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