Protected Disclosures Amendment Bill [B40B-2015]: deliberations; Salaries, Judges allowances & benefits

NCOP Security and Justice

23 February 2017
Chairperson: Mr D Ximbi (ANC; Western Cape)
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Meeting Summary

The Select Committee met with the Office of the Chief Justice who briefed the Select Committee on the President of the Republic of South Africa’s (the President) determination of remuneration increase for Constitutional Court Judges and Other Judges annually. The President, after consultation with the Independent Commission for the Remuneration of Public Office Bearers, determined that the annual increase for Constitutional Court Judges and Other Judges would be set at 0% with effect from 1 April 2016.

The Select Committee, having considered the Draft Notice and Schedule submitted in terms of section 2(3) of the Judges’ Remuneration and Conditions of Employment Act, 2001 (Act No 47 of 2001), determining the rate at which salaries are payable to Constitutional Court Judges and Judges annually with effect from 1 April 2016, referred to it, recommends that the Council approve the said Draft Notice and Schedule.

The Committee was supposed to consider and vote on the Protected Disclosures Amendment Bill. However, there was disagreement about Clause 9B of the Bill. The DA felt that the clause should be removed as it posed a threat to whistle-blowers and will prevent people from coming forward as whistle-blowers. ANC MPs believed that the clause is necessary because it prevents people from lying and those who deliberately gave false information should suffer the consequences. The DA pointed out that the Committee could not adopt the bill without a quorum and left the meeting shortly thereafter. The Bill was not approved and a decision was postponed to a later date.

Meeting report

The Chairperson announced that Ms G Manolope (ANC;Northern Cape) will not be attending the meeting due to an oversight that she is attending in the Northern Cape.

Mr G Michalakis (DA;Free State) also announced that Mr M Chetty (DA) (KwaZulu-Natal) would also not be attending the meeting.

Mr J Mthethwa (ANC; KwaZulu-Natal) requested if Members can be given five minutes to elect an Acting Chairperson for the Select Committee on Petitions after the Committee had concluded its business.

The Chairperson agreed to the request. He further went on to read the first item on the agenda. The Committee would receive a briefing from the Office of the Chief Justice on the President's determination of remuneration increase for Constitutional Court Judges and Other Judges annually. The President, after consultation with the Independent Commission for the Remuneration of Public Office Bearers, determined that the annual increase for Constitutional Court Judges and Other Judges would be set at 0% with effect from 1 April 2016.

Briefing by the Office of the Chief Justice (OCJ) on the Draft Notice

Mr Casper Coetzee, Chief Financial Officer, OCJ, announced that the Secretary-General of the OCJ is unable to attend the meeting due to an illness and submitted apologies on her behalf.

He reported that the remuneration of judges is not part of the OCJ’s voted funds, the remuneration comes from the direct charges on the budget of the OCJ. In terms of Section 176(3) of the Constitution, the salary benefits and allowances of judges may not be reduced. The salaries and scales of the Chief Justice, High Court judge and Supreme Court judges, as recommended by the Commission,has not been increased. Also, there were no increases for benefits such as medical aid, motor vehicle allowances, resettlement allowances and travelling allowances. In April 2016, at the Heads of Courts meeting, the judges decided to implement their own voluntary cost containment measures on some of their benefits. For instance, judges are entitled to a motor vehicle to the value of R1.3 million to R1.6 million. They have since limited the amount to R990 000 but it is voluntary so if a judge chooses not to participate it can not be enforced. However, most of the judges complied with this. Owing to this, the Department of Justice has saved a lot of money. In terms of recommendations, it is recommended that the Committee approves the determination as per the notice of Parliament, by the President that there should be zero salary increase for the Judiciary.

Discussion

Mr M Mahlangu (ANC; Mpumalanga) said there is no reason for the Committee to deliberate on the presentation because it is clear. He moved for the adoption of the notice.

Mr Mthethwa asked how many judges refused to join the voluntary cost containment measures. He seconded the motion of adoption of the notice.

Mr Coetzee replied that the OCJ does not have the actual number of judges who refused but the percentage was however very small compared to those who volunteered.

Committee Report

The Chairperson read the Report of the Select Committee on Security and Justice on the Draft Notice and Schedule submitted in terms of section 2(3) of the Judges’ Remuneration and Conditions of Employment Act, 2001 (Act No 47 of 2001), determining the rate at which salaries are payable to Constitutional Court Judges and Judges annually, dated 22 February 2017.

The Select Committee met with the Office of the Chief Justice who brief the Committee on the President of the Republic of South Africa on remuneration increase for Constitutional Court judges and other judges annually. The President, after consultation with the Independent Commission determined that the annual increase for judges and other judges would be set at zero percent with effect from 1 April 2016. Therefore, the Select Committee having considered the draft notice submitted determining the rate at which salaries are payable to Constitutional Court judges and judges. The Council must approve and set the Draft Notice.

Deliberations on the Protected Disclosures Amendment Bill [B40B-2015]

The Chairperson said the Committee must deliberate and decide whether to approve or reject the Bill. He noted there was one amendment to consider.

Mr Michalakis said he noted the additional amendment proposal and had no objection to it. However after hearing the submissions made last week, the DA was not convinced by the responses the Committee received from the Department to the questions posed. He understood the motivation behind clause 9B but provision is made for contravention of issues that are covered by this clause in other legislation and the place for it is not in this bill but elsewhere. He further argued that corruption in SA must be taken seriously, and this should be visible in the Bill. Therefore, the Bill must not contain sections that have the potential to discourage whistle-blowers from reporting on corruption activities especially if the clause is covered elsewhere. This provision changes the bill from an excellent one to a bad one. He therefore asked the Committee to remove Clause 9B and appealed to the governing party to not mess up a good bill because of one clause.

Mr Mthethwa said he is in favour of the Bill. In his view, there is a tendency in this country for people to blackmail someone and “get away with murder”. For that reason, he did not support his colleague's view. The clause was not hindering or a threat to whistle-blowers if they know what they are talking about. However, if you take rumours and push rumours there must be consequences that.

Ms B Engelbrecht (DA; Gauteng) said this is a whistle-blowers bill and not a bill for people wanting to make false disclosures in their personal capacity or people that are vindictive about other people. Any person who has the guts to be a whistle-blower takes a big risk and the implications are very serious. Clause 9B will prevent people from coming forward as whistle-blowers consider the consequences of their actions before reporting on corruption. She supported the removal of Clause 9B.

Mr Mahlangu said that Section 42 of the Act protects whistle-blowers. There must be penalties and consequences for whistle-blowers who mislead or give false information, therefore Clause 9B must be left as it is.

Mr Michalakas noted that the rules did not make provision for a minority view to be included in the report but requested that DAs objection to clause 9B be noted in the minutes.

The Chairperson said the objection will be recorded.

Mr M Mohapi (ANC; Free State) said that Clause 9A actually protects the whistle-blower, where the person acts faithfully. However, Clause 9B speaks to where a person deliberately misleads and there should be consequences for this. He supported clause 9B.

Mr Michalakas said according to Rule 155(3) the Committee can not adopt the Bill with its amendments if there is no quorum. He proceeded to walk out of the meeting.

The Chairperson briefly paused the meeting.

The Committee meeting was adjourned after a few minutes.

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