Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill: Options, Private Member's Special Investigating Units and Special Tribunals Amendment Bill rejected

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Justice and Correctional Services

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

Members considered the various options provided by the drafters for the Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill, using draft 3 from 21 February. Following a discussion on the previous day, the State Law Advisers and drafter from the Department of Justice and Constitutional Development outlined that “conditions of service” (which Members had initially agreed should be used throughout the Bill) could include work days, hours, breaks, dress code, overtime pay, or leave entitlement, and agreed with concerns raised that it may not be appropriate for the Independent Commission to deal with these matters. There were differences between conditions of employment and service benefits, but again, it was not considered appropriate for the Independent Commission to deal with the latter either. A question was posed whether this Bill would be affected by the fact that the Office of the Auditor-General was paid by departments for audits, but since the salary was budgeted for out of all income, it was felt that this had no effect. Members then proceeded to check every clause of the Bill, and select the most appropriate options. Overall, it was agreed, following the earlier explanation, that the Bill should consistently reflect the wording used in section 219(5) of the Constitution, so for all institutions, there would be references to “salaries, allowances and benefits”. The second principle agreed upon by the majority of Members, which affected the choice of options, was that references to approval by or tabling to “Parliament” should be replaced with “the National Assembly. The third principle, on which the dissent of the DA was recorded, was that the Independent Commission must, when investigating or considering the recommendations, consult with both the line minister and the Cabinet member responsible for finance. Another principle confirmed by Members when indicating their preference for options was that both part time and full time members of the Commission for Gender Equality, South African Human Rights Commission and Independent Electoral Commission should have their “salaries, allowances and benefits” determined by the Independent Commission and there should no longer be, in any of those Acts, references to additional work or remuneration.

Members agreed that the new short title would be “Determination of Remuneration of Office Bearers of Independent Constitutional Institutions Laws Amendment Bill”. “Remuneration” would cover salaries, allowances and benefits. New clauses inserted to cater for the contemplation of inclusion of the Public Service Act were deleted, because the addition of the Public Service Commission and Financial and Fiscal Commission at this stage would have affected the tagging. New definitions were to be inserted into the Independent Commission's own Act for “constitutional institution” and “office bearer”. Members decided that it was very important to retain the new section 8(6)(b)(ii) on page 19, which spoke to considerations around affordability. There was quite substantial discussion on the revised section 7(2)(b) of the Public Audit Act, and Members noted that whilst it was necessary to offer a competitive salary for the Auditor-General (AG), and to take into account the special responsibilities attaching to this position and that of Public Protector, the current pegging of the salary of the AG at “substantially the same as those of the top echelon of the judiciary” was problematic. It had earlier been suggested that this should be changed, for both the AG and the PP, to “ not be more than that of a judge of the High Court”. However, discussing the merits further, Members eventually decided that they would prefer not to include any benchmarking at all, and that the determination should be left entirely to the Independent Commission.

The majority of Members (four votes from the ANC to three from the DA and COPE) voted against a Motion of Desirability proposed by the DA for the Private Member's Special Investigating Units and Special Tribunals Amendment Bill. The Committee Report was adopted by the majority of Members, but opposed by the DA and COPE

Meeting report

Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill: version dated 21 February
The Chairperson noted that in this meeting he would like Members to determine all the options for the Bill so that a clean draft could be presented on the following Tuesday.

He asked for a report back on the two items raised yesterday.

Mr Johan Labuschagne, Principal State Law Adviser, Department of Justice and Constitutional Development, summarised that the first issue was to consider whether the term “conditions of employment and service benefits”should be used in the Bill. The second matter was the effect that this Bill would have on the salary of the Auditor-General (AG).

He had asked for research from his colleagues into what “conditions of service” could mean. That included work days, hours, breaks, dress code, vacations and leave. The Basic Conditions of Employment Act (BCEA) of 1997 indicated that an employer must supply an employee, on commencement of employment, with particulars in writing around the rates of pay for overtime, any other cash payments, any deductions, and leave entitlement, as a few of the examples. The Committee, on the previous day, thought that these were not issues with which the Independent Commission should be concerned. The State Law Advisers had shared his view that perhaps the reference to “conditions of employment” should be deleted.

The next question was the difference between conditions of employment and service benefits. He could not track anything down specifically but it appeared that there was a difference and if the reference to “conditions of employment” was deleted, then the Independent Commission would not have to determine these matters either.

Ms Xoliswa Mdludlu, Principal State Law Adviser, Office of the Chief State Law Adviser, said that the BCEA set out a certain threshold in relation to salary, so that it did not cover everyone, and would certainly not cover the commissioners. “Any employee” who did not fall within this Act must negotiate with the employer, and it would then be up to the parties.

Ms D Schäfer (DA) pointed out that the phrase “conditions of employment” was not included in section 219(5) of the Constitution, which referred only to “salaries, allowances and benefits” and she thought that the same wording as the Constitution should be used.

Mr Labuschagne said that he had tried to give effect to the amendments proposed on the previous day, and he had amended the provisions of all the founding legislation to refer being amended by this Bill to read “salaries, allowances and benefits”. There were some commissions that he still needed to deal with, although the amendments would be similar.

Mr S Holomisa (ANC) asked who would determine the conditions of employment of public office bearers.

The Chairperson said that he thought it would be set out in legislation and regulations.

Ms Mdludlu said that there was not one standard format; it could include recommendations to the President and regulations.

Ms C Pilane-Majake (ANC) agreed  that there was no sufficient provision for this insofar as the Chapter 9 institutions were concerned, and depended on each institution. It was a grey area, as she had pointed out on the previous day.

Mr Holomisa pointed out that these were independent institutions and subjecting the commissioners to negotiation with someone else could compromise their independence. For that reason, he was in favour of everything they received being determined by the Independent Commission, so that they did not have to negotiate with another body.

Ms Schäfer thought that the Independent Commission could not set hours of work, and made the point that these were professionals who would be removed if they did not perform.

The Chairperson shared her view and said that all commissioners were supposed to be highly professional people with integrity.

Mr Holomisa said that in view of these comments, and if “conditions of employment” had nothing to do with money, then he would agreed that they did not need to be included in the Bill.

Ms Pilane-Majake reminded Members that when the point was raised on the previous day, they had concluded that it was probably not necessary to include anything in the current Bill. However, she urged that because of the Committee’s oversight role, it had to put these issues on the agenda, look at them again and debate it and consult, if necessary, to try to settle them in some way.

The Chairperson asked the researchers to perhaps look at other comparable jurisdictions – of which there were only very few – to check how they might handle the matter. He understood Ms Pilane-Majake’s point and agreed that this grey area had to be addressed. It was not apposite to deal with it in this Bill, but the Committee would need to look at it in another forum.

Ms Christine Silkstone, Content Advisor, agreed that there had been some problems raised a few years ago by one of the commissions, and she would deal with this in the Committee’s Legacy Report.

The Chairperson summarised that for now, the term “conditions of employment” should not be included in the Bill so that for all institutions, the focus would be on “salaries, allowances and benefits”, as used in section 219(5) of the Constitution (hereinafter referred to as “section 219(5)”)

Mr Labuschagne said that the Committee that eventually looked at the matter would need to sit down, and, in respect of every Chapter 9 commission, would have to list conditions of employment, for they would not necessarily be standard across all commissions. He was not sure how this worked in practice at the moment, but Commissioners probably decided these amongst themselves.

Mr Labuschagne then turned to the second issue, on the Auditor-General. He noted that the Office of the AG received income from money paid by departments being audited, amongst others, but since this Bill merely provided that the salary, allowance and benefits of the AG were to be paid from the funds of the Office of the AG, he could not see that the Bill would have any effect on the present procedure.

Ms Mdludlu added that the salary simply came out of budgeted funds. Section 36 of the Public Audit Act said that the budget was made up of money appropriated by Parliament, fees for audit work and donations, for which a budget and business plan were drawn.

Mr Labuschagne reminded Members that the last proposal on the previous day was that he substitute “term of office” for “continuation in office”, in respect of the Public Audit Act amendments, and he had done so.

The Committee decided to continue to go through draft 3 again (see attached document) to try to give final instructions to the drafters on their preferred options

Short title
The Chairperson summarised that the AG and Public Protector could not really be described as “members” and so the term “office bearers” was used instead. The new title would read: “Determination of Remuneration of Office Bearers of Independent Constitutional Institutions Laws Amendment Bill”.

Mr Labuschagne said that because the Committee was reverting back to the wording of section 219(5) Constitution, this would mean that, in this latest draft, the wording would have to be read as substituted. The word “remuneration” was used in the short title, however.

The Chairperson thought that “remuneration” dealt with salaries, allowances and benefits.

Members indicated that they preferred “remuneration” to “salaries” in the Short Title, and were happy with the reference to “office bearers”.

The various options in relation to each of the pieces of founding legislation were set out on page 2 to 4.  The decision overall was to stick to the wording in section 219(5). This meant that, for both the Public Protector and Deputy Public Protector the phrase “salaries, allowances and benefits” would be used. The same would apply to the South African Human Rights Commission (SAHRC) Act.

Mr Labuschagne said that the SAHRC Act had been assented to by the President, so all the provisions dealing with the 1994 Human Rights Commission Act had been inserted at the end of the Bill, to maintain the chronological sequence in which the Acts being amended were set out (as it was the latest Act introduced).

Ms Schäfer sought clarity whether the SAHRC legislation dealt with last year was an amendment Bill, or a new Act, and the Chairperson noted that it was treated as a new Act, because it was now based on the 1996 Constitution.

Mr Holomisa agreed with the chronological order now used.

Members agreed that the reference to the Commission for Gender Equality was now correctly reflected, as set out in Option 2, which was accepted.

Members agreed that the references to the Public Service Commission would have to be deleted from this Bill, because the inclusion of the PSC, although desirable, would have changed the classification of this Bill. The same applied to the Financial and Fiscal Commission. Only the Independent Communications Authority of South Africa (ICASA) would be included. For the Electoral Commission Act reference.

Again, the wording used for the Electoral Commission Act, ICASA Act, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRLC) Act and the Public Audit Act, the wording used must be in line with section 219(5) .

Members accepted the wording of the Preamble.

Clause 1
There were no changes proposed to this clause.

Clause 2: Amendments to Public Protector Act
Members agreed that this wording needed to be brought in line with the Constitution. Various options were set out at the bottom of page 5, for the changes to section 2(2) of the Public Protector (PP) Act. Members agreed that the wording for the main body of section 2(2) was to be in line with the Constitution. There was an option for the new section 2(2)(b), and Mr Labuschagne reminded Members that the wording “National Assembly” was reflected in Option 1, in recognition of the fact that the Chapter 9 institutions were accountable to the National Assembly, rather than to Parliament. Option 2 merely made provision that the Public Protector shall be entitled to a salary “equivalent to” that of a judge, which the Committee had earlier indicated that it agreed to. (However, this was later revised). Option 3 referred to “allowances and other terms and conditions”. He suggested that option 3 was the closest to what the Committee wanted, subject to this wording being brought in line with the Constitution.

Members noted that there was a reference to the salary not being reduced. They agreed to Option 3 for the new section 2(2)(b), to be brought in line with section 219(5).

More options were set out for the new section 2(2A). Mr Labuschagne explained that Options 1 and 2 deleted the requirement for the Independent Commission to consult with the line function Minister. Whatever the Committee decided on this, the same principle would also apply to all other Chapter 9 institutions.

Ms Schäfer thought that Option 1 was fine, subject to the change in wording. She thought Members had agreed that only the Minister of Finance should be consulted.

The Chairperson noted that the relevant line function Minister had the budget and presently, when the judges’ salaries were considered, the Minister of Justice was consulted.

Mr Holomisa stated that he was not sure whether there was any institution that did not have reference to some Minister and he thought that it made sense for the line Ministers to be involved. He added that the Minister of Finance would surely consult with others. There would also be a politician who would check that the budgets for the commissions were in line.

Ms Schäfer said that the Committee had had this debate already. In her view, because they were independent institutions, only a requirement to consult with the Minister of Finance was appropriate.

The Chairperson noted that Members had not reached consensus and put the matter to a vote.

He noted four votes (from the ANC Members present) in favour of referring to “consult with the Minister and the Cabinet member responsible for finance” and one vote (DA) against that principle. Option 1 was therefore agreed to by the majority of Members. The DA asked that its objection to this principle be recorded.

Members were happy with the new section 2(2B), provided it was brought in line with the Constitution. They noted that this decision would apply throughout the Bill.

There were two options noted for the new 2(2C). Members agreed that the option, containing a reference to “National Assembly”, was more appropriate.

Clause 3: Amendment of section 2A of the Public Protector Act
Mr Labuschagne explained  that the first Option was a new insertion, to amend the heading, and this must be read separately from other options noted further down page 7. The heading would be brought in line with the wording of section 219(5).

The same applied to the option for subsection 2A(5).

There were options for section 2A(5)(b) and Members agreed to use Option 1, using the wording “National Assembly”.

Ms Silkstone noted that the Public Protector Act said that the National Assembly should be able to determine the conditions of employment.

The Chairperson said that this would remain in the PP Act, but would not be referred to in this Bill in relation to the Independent Commission.

Options were set out in respect of the revised section 2A(5A), and the majority of Members decided that it should remain as it was in the Act, subject to the section 219(5). The DA, however, noted its objection to the inclusion of the line function Minister.

Clauses 4 and 5: Amendment of South African Human Rights Act
Mr Labuschagne noted that these clauses were being moved and would be dealt with later. All the wording from pages 8 to 11, dealing with the SAHRC Act, were being moved to clauses 16 and 17.

Clause 6 (Now renumbered as clause 4): Changes to Commission for Gender Equality Act
The Committee agreed on the change of title.

Mr Labuschagne explained that the Option for section 1 of the CGE Act struck out the amendment that was originally included in the Bill, to amend the definition of “Minister” and it should be accepted because the definition of “Minister” had already been substituted by the Gender Equality Amendment Act.

Clause 7 (now clause 5): Amendment of section 8 of CGE Act
Members agreed that the wording for full and part time members must reflect the wording of section 219(5).

Several options were set out on page 12, for section 8(b), and Members agreed that the Option referring to the “National Assembly” should be accepted.

The next option related to section 8(2), but Members agreed that the wording must simply be altered to be in line with section 219(5).

In relation to section 8(3), Ms Schäfer reiterated the DA's objection to the inclusion of the “Minister” but the original wording of the clause, and not the options, was accepted by the majority of Members. Mr Labuschagne reminded Members that Option 3 on page 13 deleted the existing provision dealing with remuneration of part-time members performing additional functions. The Bill, as introduced, had included that as a new sub-clause (6). Because the Committee did not support that principle, it had been necessary to draft Option 2, although it was prepared before the Committee had taken a decision whether the Cabinet Minister needed to be consulted. Option 3 deleted the existing subsection (6) but provided for the same process that the Independent Commission must follow for all part-timers.

The Chairperson pointed out that Option 3 was deleting the reference to the Minister and the Cabinet Member responsible for finance.

Ms Schäfer thought everything was covered by the existing section 8(3), as set out in the middle of page 12, immediately prior to “Option 1”. 

The Chairperson noted that Members had agreed that even part-time members’ salaries, allowances and benefits had to be agreed upon by the Independent Commission.

Mr Holomisa said that Option 2 was crafted because of the concern over additional duties.

Ms Schäfer felt that the phrase “members of the Commission” would cover everyone.

Mr Holomisa suggested that Option 2 on page 13 was preferable

The Chairperson pointed out that the reference to the relevant Minister still had to be reinstated.

Ms Schäfer asked why, in principle, the Committee was keen to have references to the line ministers inserted, as the commissions had their own separate appropriation.

Mr Holomisa asked who presented the budget for these institutions; surely there must be a Minster responsible.

Ms Pilane-Majake said that the ministerial responsibility was linked to the channeling for funding. However, if the process of allowing the institutions to get money directly from Treasury was to come into effect, it would no longer be necessary to refer to the line ministers.

Ms Pilane-Majake wanted to sound a note of caution about additional duties for part time commissioners. With the decision to include part and full time commissioners together under the Independent Commission, uniform amounts could be budgeted and paid, and paying any commissioner for additional duties had the potential to lead to huge bills being presented each month.

Ms Schäfer said that if part-time commissioners were able to make out a case to the Independent Commission on additional duties that deserved remuneration, it could still use its discretion, but the point was that it should be the Commission that decided the amounts.

Ms Pilane-Majake agreed that this had been what she was suggesting and the options seemed to support that.

Members discussed the options on page 12 again. Option 2 was the preferred option for the new section 8(3).

For section 8(5), the option reflecting “National Assembly” was preferred.

Options 1, 2 and 3 on page 13 related to the new section 8(6). Mr Labuschagne said that in order to create the whole uniform process to determine full and part-time members, there had been new subsections created, but the acceptance of option 2 on page 12 meant that all these options on page 13 could fall away.

Clause 8 (now clause 6)
Members accepted this clause.

Clause 7: amendment of section 7 of Electoral Commission Act
Mr Labuschagne said that the first option related to an amendment of the heading and it would be brought in line with section 219(5).

In relation to the option for section 7(2), Mr Labuschagne explained that he had used “full time and part time” to keep the provision as much in line as possible with the existing wording of this Act.

Ms Schäfer agreed that this might also remind the Independent Commission of the two categories of commissioners for the IEC.

Members agreed that the Option listed at the bottom of page 14 should be used for section 7(2).

On page 15, the Option 1 that used the wording  “National Assembly” was preferred, for section 7(2)(b), subject to the necessary changes to bring it in line with section 219(5).

The proposed new 7(2A) was set out, and Members chose the wording set out prior to the options, although the DA noted an objection again to the inclusion of the line minister.

The proposals for (2C)(a) set out in the Option at the bottom of page 15 were accepted, which referred to reporting to the National Assembly.

New clauses listed on pages 16 and 17
Mr Labuschagne told Members that these clauses, which had been inserted when it was still contemplated that the Public Service Commission could be included, were now to be deleted.

Clause 10 (now clause 8): Amendments to Independent Commission for Remuneration of Office Bearers Act
Mr Labuschagne said that the Committee had already indicated its support for the third option for the new definition to be inserted into the Independent Commission for the Remuneration of Public Office Bearers Act (the Independent Commission Act), but with the inclusion of a reference to ICASA. The main difference in the wording of the options went to “provided for” or “referred to” section 192 of the Constitution.

Ms Schäfer suggested a new formulation altogether of “any independent institution established in terms of the Constitution , including ICASA” .

Ms Silkstone pointed out that not all the independent institutions were being covered, such as the SABC.

Ms Schäfer thought that perhaps then the formulation could make specific reference to ICASA being included, whilst other would be excluded.

The Chairperson said that it was possible then merely to amend the wording now included for the definition of “constitutional institution” by adding in a reference to ICASA. The Public Service Commission (PSC) was not listed in Chapter 9.

Mr Labuschagne confirmed that Option 1 clarified that the Deputy Public Protector was not a constitutional institution, so that was why it had been excluded from the definition. A reference to the Chapter 9 institutions, but excluding the PSC and Financial and Fiscal Commission (FFC) could be made.

The Chairperson confirmed, in answer to a question from Ms Schäfer, that there were no others to be dealt with.

Ms Schäfer asked what would be the effect of removing the reference to the Deputy Public Protector.

Mr Labuschagne said that the deletion of the Deputy Public Protector was only from the definition of constitutional institutions, because there was no such institution. However, the person of Deputy Public Protector was still included, under the public office bearers. He said that perhaps then Option 2 on page 18, which related to the definition of “office bearer” was the most appropriate, because it referred to that person.

Clause 11 (now clause 9): Amendments to section 8 of the Independent Commission Act
Mr Labuschagne noted that there were no decisions to be made on this point as it was merely a renumbering.

Ms Pilane-Majake asked about the new section 8(6)(b)(ii) on page 19, and wondered if considerations of affordability would still apply, in view of the decisions around part-time members that had already been made when discussing page 12, which should correct any risk of unforeseen spending.

The Chairperson thought that the “affordability” referred to here was general. The Independent Commission must indeed consider affordability and it was a very important provision to have. He did not believe, and other Members seemed to share his view, that there was a need to change it.

Mr Labuschagne noted that a change would need to be made to the new section 8(6)(b)(i) to bring it in line with section 219(5).

New Clause 10: Amendments to ICASA legislation
Mr Labuschagne said that the proposed clauses 10 and 11 dealt with ICASA. The wording would have to be changed to be brought in line with section 219(5).

There were options set out on page 20 for section 10(3). The heading would be amended,  to bring it in line with section 219(5). The majority of Members preferred the new wording for section 10(3), but not the options, so that there would still be a reference to the line minister, but Ms Schäfer asked again that her objection be recorded.

Members also accepted the Option for the new 10(5)(a) and (b), referring to the National Assembly.

Clause 12
This clause was accepted.

Clause 13: Amendment of the CRLC Act
Mr Labuschagne said that the first option listed, in the middle of page 21, was needed as this was a completely new heading.

For the new section 14(1), there were options, but Mr Labuschagne pointed out that they really only referred to differences in the references to remuneration, and the Committee had already decided to follow the wording of section 219(5) of the Constitution, so none of them was exactly correct any longer.

Ms Schäfer said that the Option for section 14(1), would then be followed also for (a) and (b).

Option 2 on page 22, for section 14(1)(b) referred to approval by the National Assembly, but that must also be brought in line with section 219(5).

Mr Labuschagne added that option 2 also took matters further to say the remuneration may not be reduced and the allowances and other terms and conditions may not be altered. That was in line with all the other Chapter 9 institutions.

In relation to the new section 14(1A) the main wording before the Option was acceptable. (1B) was also acceptable . The option for (1C), which referred to the National Assembly, was selected, on page 22.

Clause 14: Amendments to the Public Audit Act
No changes were required to this clause

Clause 15: amendments to section 7 of the Public Audit Act
Mr Labuschagne said that “salaries, allowances and benefits”would have to be changed, in the new heading as set out in clause 15(a).

The new section 7(1) would also need to be brought in line with section 219(5). The Option for the new section 7(1)(b) was preferred, referring to the National Assembly.

Under the new section 7(1A), Mr Holomisa quipped that he believed only putting in the reference to the Cabinet Minister for Finance was acceptable (and added that he was of course also the line Minister!)

Mr Labuschagne suggested that for section 7(1A), the introduced version, not the Option, should be used. Members confirmed this, and also confirmed that the new (1B) and (1C) were acceptable, but the option for (1C)(a) and (b), on page 24,  that referred to the National Assembly, would be used.

Members then turned to a discussion of the revised section 7(2)(b).

Ms Schäfer seemed to recall that the Committee was due to receive more information about salaries that would be expected by people with the experience and expertise of the AG, as it had been stressed that for this position in particular, there was a need to offer a competitive salary. She had been wondering again whether the removal of any statement on a ceiling was appropriate.

The Chairperson asked for the researchers to look into comparative figures.

Mr Frank Jenkins, Senior Parliamentary Legal Adviser, suggested that in principle, capping the salary did not support the independence of the Office of the AG, and there was also the possibility of having leverage over an appointment if the words “no more than” were used. He thought that if any benchmarking was to be included it would be preferable to use the word “equivalent”. It must also be remembered that High Court judges were appointed for life whereas the AG had a non-renewable term of office. It was always difficult to make the calculation, because of the divergence in the period over which a salary would be paid. There was ongoing debate about benchmarking. The current wording of the Public Audit Act, which referred to “substantially the same as the top echelon of the judiciary” was vague. He had recently drafted an opinion for the Presiding Officers. There were two streams of judicial salary for the magistrates and superior courts, and he pointed out that it was a misconception to assume that “top echelon” meant “in line with the Chief Justice”, but this was the view that had prevailed in the Standing Committee on the Auditor-General (SCOAG) which had dealt with the Act, and it had created some problems. At the moment, the Deputy AG was earning more than a High Court judge, at around R3 million a year compared to a judge's approximately R1.5 million, but it must be remembered also that the Deputy AG was contract employment that was renewable and thus was different from the fixed, non-renewable term of the AG.

The Chairperson said that in his discussions with the Chairperson of SCOAG, the latter had indicated that he would be satisfied with the amendments suggested in this version, as SCOAG had needed this Committee to amend the problematic wording in the current section 7(2)(b).

Ms Silkstone said that if the problem was seen as pegging the salary against a High Court judge, perhaps the solution might be to allow the Independent Commission to decide an appropriate salary, without any comparisons being mentioned.

The Chairperson said that the problem was not the pegging, but the wording “top echelons” and that had to be fixed here. It would be possible to do away with having a ceiling that was linked to a High Court Judge,

Ms Schäfer agreed that Mr Jenkins had made a very valid point that judges could expect earnings over a certain number of years, whereas commissioners were appointed for a term of office. She felt that perhaps the wording referring to the need to take into account the knowledge and experience of the prospective incumbent could be used for all institutions, but she felt that overall, it would be more in line with respecting the independence of the institutions not to have any benchmarking or ceilings at all, so that it would be left to the Independent Commission to decide what was reasonable and affordable.

Ms Silkstone referred back to page 19, where the criteria were listed in sections 8(6)(a) and (b) of the Independent Commission's Act, and said that it was necessary to consider how these linked together, and that there also seemed to be a horizontal aspect.

Mr Jenkins said that the across-the-board approach should also pay specific attention to the special position of the AG and the PP, as oversight bodies and the fact that a special majority would be needed in the House should Parliament wish to remove them. Specifically in relation to the AG, he also noted that from an international perspective, the AG was seen almost an independent office within Parliament separate from the Executive, because it performed vital fact-gathering exercises, to enable Parliament to function. For these reasons, its independence had to be protected most vigorously. He would prefer to see either a minimum salary, or the use of “equivalent”, but then there was also a need to consider whether this would not unduly hamstring the salary determination process. The issue was how to translate an appropriate salary into a legal provision in the Bill. Perhaps the AG's salary should not be tied too closely to that of a High Court judge. If a particular appointment was desirable, but it was impossible to offer more to get that person's services. a person really was wanted but could not be offered more, it could be problematic.

He repeated that the mistake with the wording of “top echelon”, from the start, was the assumption that that this must mean either the Constitutional Court judges or the Chief Justice. There was a distinction between the offices of judges and the Chief Justice, with the latter holding a very specific position as head of the judiciary, although that person was still expected also to perform judicial functions, as well as ceremonial and other functions. That was also clearly distinguishable from the position of the AG. Some very generous concessions had been made in the case of the former AG. If the main problem was that the SCOAG now wished the Act to be amended to be able to move away from the “top echelon” wording, then salary peggings could be re-adjusted when positions became open, or could be pegged at certain levels for a few years. This Committee, however, would need to find the right wording to ensure an appropriate salary in line with the need for independence. He wondered if making reference to a band of salaries might be appropriate.

Members disagreed on the band concept, and said that this was likely to lead to further complications.

The Chairperson said that perhaps the reference to High Court judge's salary could be removed in respect of everyone in the Bill. The Bill would specifically, in relation to the Public Audit Act, also delete the current section 7(2)(b) that referred to “top echelon”l

Mr Labuschagne asked if some other formulation was then needed.

Members said that there should be no benchmarking included at all, for either the AG or the PP. The proviso noted that the top of 25, following 7(2)(b) would then also be removed.

Prof L Ndabandaba (ANC) said that he supported that position as he had not been happy with the benchmarking in the first place.

The Chairperson noted that the relevant line ministers and the Minister of Finance would have to keep an eye on what was happening and make input at the appropriate time.

Clause 16: Amendments to SAHRC Act
Mr Labuschagne explained the reasons for the option, which were linked to the positioning of these clauses.

Clause 16 was accepted.

Clause 17: Substitution of section 9 of SAHRC Act
Mr Labuschagne noted the option for section 9(1) heading, which was accepted by Members, subject to the clause being brought in line with section 219(5).

In relation to the revised section 9(2), it was also noted that the wording would also need to be altered to be brought in line with section 219(5).

There were two options listed for the new section 9(3), but Members indicated that they preferred the wording listed alone as the new subclause (3) and not the options.

Mr Labuschagne explained that this was similar to the wording he had been through in relation to the part-time commissioners for the CGE. If the Committee preferred option 2(a), then it would firstly have to be brought in line with section 219(5), and secondly a reference to the relevant Minister would have to be included.

Ms Schäfer noted her objection to the inclusion of the line minister, for similar reasons as set out earlier.

It was confirmed that on page 27, the option for the revised section 9(5) would be accepted, referring to the National Assembly.

Mr Labuschagne said that due to the adoption of option 2(a) on page 26, all the other options for part-time members, to the bottom of page 27, would fall away.

Short title and commencement
Mr Labuschagne confirmed that the Short Title would have to change and noted that Option 1(b) contained the wording in line with Members' decisions earlier.

Mr Labuschagne said that he would now complete a Draft 4 which would take all these instructions into account. He would also prepare a clean Bill where all options had been deleted.

Special Investigating Units and Special Tribunals Amendment Bill: Consideration (and rejection) of Motion of Desirability; Adoption of Committee Report
Ms Schäfer said that after the meeting on the previous day, she wished to propose that her Private Member's Special Investigating Units and Special Tribunals Amendment Bill was critical, to ensure that an institution that was dedicated to fighting corruption would not be derailed by the Presidential appointment process. She therefore wanted to propose a Motion of Desirability, which was then seconded by another DA Member, and supported by the two DA Members and the COPE Member.

The Motion of Desirability was opposed by four ANC Members. The Motion of Desirability was thus rejected.

A draft Committee Report was distributed.

Ms Schäfer said that, under point 3, it was preferable to use the phrase “both institutions chose not to express...” rather than “both institutions did not express...”.

Mr Holomisa referred to the third line of the introduction, and said that the words “the amend” should be removed.

Ms Silkstone suggested that in the same paragraph, there should be a correction of a reference, to “in 2013”. She also noted that the phrase at the bottom should be “Report to be considered”. In paragraph 4, the date 2014 should be inserted.

Mr Holomisa noted that in paragraph 4, in the second line, the word “desirable” must be deleted.

The Members adopted the Committee Report, with four votes recorded in favour and three votes (two from the DA and one from COPE) against.

Other Committee business
Ms Smuts asked if the SAHRC was still going to present a report on the Promotion of Access to Information Act and the Committee Secretary said that the programme was still provisional.

The meeting was adjourned.


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