Determination of Remuneration of Office Bearers of Independent Constitutional Institutions Laws Amendment Bill: Departmental briefing; Committee Legacy Report

NCOP Security and Justice

11 March 2014
Chairperson: Mr T Mofokeng (ANC, Free State)
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Meeting Summary

The Department of Justice and Constitutional Development presented the Determination of Remuneration of Office Bearers of Independent Constitutional Institutions Laws Amendment Bill [B31B-2013] to the Committee. The Memorandum on the Objects of the Bill set out each clause in detail, but the Department tabled a concise summary of what the Bill sought to achieve, as well as a comparative table showing the current process for determining remuneration, in each of the constitutional institutions, which included the various Commissions listed in the Bill, the Auditor-General, and Public Protector. Each was governed by its own legislation which set out, amongst others, how the remuneration for commissioners, members or office bearers was to be determined. However, as the table showed, the exact wording, and the process followed, differed between institutions This Bill sought to create a standardised process under the Independent Commission for the Remuneration of Office Bearers, which already had the expertise and know-how, and amended all the legislation for the institutions to create standardised clauses. In future the “salary, allowances and benefits” would be determined by the President by notice in the Gazette, after taking into consideration the recommendations of the Independent Commission. The determination must be approved by the National Assembly (NA) before being published, and the reason for the NA being cited was that these institutions were accountable to that House. The Independent Commission must consult with the responsible Cabinet Member and the Cabinet Member responsible for finance.

Members accepted the explanation on the citation of the NA. Concerns were raised that whilst the Chapter 9 institutions seemed to be well catered for, there were problems with magistrates and their salary determinations. The Chairperson ruled that since this was not a matter covered by the Bill, it must rather be deliberated outside this meeting. Members asked if the Chapter 9 institutions would benefit from the passing of the Bill, and were informed that whilst the process may not necessarily be easier, it would be more sensible and uniform.

Members were asked to study the draft Legacy Report and to make comments to the Committee Secretary, in preparation for its discussion and adoption at a later meeting.
 

Meeting report

Determination of Remuneration of Office Bearers of Independent Constitutional Institutions Laws Amendment Bill: Departmental briefing
Mr Johan de Lange, Principal State Law Adviser, Department of Justice and Constitutional Development, tabled two documents to Members and said that this was quite a straightforward piece of legislation. The Memorandum on the Objects of the Bill set out, clause by clause, what the Bill dealt with, but he had summarised it in a two-page document (see attached summary). The one-page document set out the position that pertained, at the moment, to each of the Constitutional institutions being affected by the Bill.

He noted that a number of Constitutional institutions had been created, and these did not only include the various Commissions (such as the Commission for Gender Equality) but also the Public Protector and Auditor-General. Each of them was governed by a principal Act, and those Acts set out how the salaries, allowances and benefits of the institutions’ members or office bearers would be determined. However, the problem was that in practice, each differed from all the others.

The remuneration had previously been considered by a Remuneration Commission, which was the forerunner to the Independent Commission for the Remuneration of Office Bearers (the Independent Commission). However, the founding legislation for some institutions called for concurrence with line ministers, whilst the Auditor-General’s remuneration was determined by an oversight mechanism. He reiterated that there was no consistency in the way in which remuneration had been decided upon or described, and read out some examples. This led too some difficulties in the practical implications and criticism about the lack of certainty. It was accepted that there was an established mechanism within the Independent Commission, with the know-how and expertise to set appropriate amounts. The current Bill therefore was creating one uniform mechanism. It amended all the founding Acts with a similar provision, which, in summary was that the commissioners, Auditor-General, Public Protector and Deputy Public Protector would, in future be entitled to “such salary, allowances and benefits” as would be determined by the President from time to time by notice in the Gazette, after taking into consideration the recommendations of the Independent Commission, and which must be approved by the National Assembly (NA).  The Independent Commission must consult with the responsible Cabinet Member and the Cabinet Member responsible for finance. He summarised the provision around dates, which was fairly standard. The Notice must be submitted to the NA for approval before it was published. He remarked that the question may arise why there was a reference to “National Assembly”, but wanted to say that it was in line with the Constitution, since all those institutions were accountable to the National Assembly.

He noted that the procedure was similar to that currently used for judicial office bearers, so it was not new. He repeated that it would create certainty and uniformity.

Discussion
Mr J Gunda (ID Northern Cape) said that he had been going to ask why there was a reference only to the NA, but accepted the explanation given.

Mr Gunda said that the Chapter 9 institutions were being looked after very well but the Department of Justice and Constitutional Development seemed to be struggling with the magistrates. He noted that the magistrates – who were public servants – were facing endless difficulties around their salaries, urged that they should be treated fairly and wondered how this could be done.

The Chairperson ruled that, since this was not a matter covered by this Bill, the Department should not deal with the answer now and he suggested that Mr Gunda raise his concerns to the Department outside of this meeting.

Mr Gunda noted that this Bill amended a number of other Acts. He asked whether the Chapter 9 institutions would benefit from the passing of the Bill

Mr de Lange answered that the process might not be easier, but it would be more sensible in the sense that there would be uniform norms and standards, making it easier to account for how the decisions had been made.

The Chairperson noted that there were no other comments.

Draft Legacy Report of the Committee
The Chairperson noted that the Members had been provided with a copy of the Legacy Report, and he asked that any queries and comments on it be forwarded to the Committee Secretary so that Members could engage with it at a future meeting.

The meeting was adjourned.
 

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