Deputy Public Protector Remuneration: Public Protector’s briefing

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Justice and Correctional Services

22 June 2005
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
23 June 2005
DEPUTY PUBLIC PROTECTOR REMUNERATION: PUBLIC PROTECTOR’S BRIEFING

Chairperson:
Ms F Chohan-Khota (ANC)

Documents handed out:
Department comparative survey on remuneration and service conditions of Deputy Public Protector and Public Protector
Public Protector Act of 1994
Letter from Public Protector to the Speaker as of 8 March 2005
Letter from Public Protector to the Department of Justice as of 11 November 2003
Letter from Public Protector to the Justice Portfolio Committee Chairperson as of 26 June 2005
Invitation to Justice Nomination (see Appendix)
Minister Memorandum on Remuneration Levels

SUMMARY
The Public Protector presented his Office's proposal for the remuneration and service conditions of the Deputy Public Protector. The Office believed that the Deputy Public Protector remuneration package should not be below that of a High Court Judge. The Committee held the view that the Office of the Public Protector's remuneration proposal of R615 130 per annum was excessive. The Committee noted that Public Protector Act did not stipulate the remuneration level of the Deputy Public Protector but only that the Public Protector remuneration should not be below that of a Judge of the Supreme Court of Appeal

Although the advertisement calling for nominations was already in the newspapers, the Committee had decided that it should be cancelled until consensus is reached between Public Protector's Office and the Department of Public Services and Administration.

MINUTES

Public Protector’s briefing
Adv Lawrence Mushwana presented his Office's proposal for the remuneration and service conditions of the Deputy Public Protector. He said that Section 2 of the Public Protector Act of 1994 provided that remuneration of the Public Protector should not be below that of a Judge of the Supreme Court of Appeal. Mr Mushwana proposed that remuneration of the Deputy Public Protector should not be below that of a High Court Judge in line with purview of Public Protector Act.

The Chair pointed out that although the advertisement calling for nominations was already in the newspapers, the Justice Portfolio Committee believed that it should be cancelled. The cancellation came in the light of the delay in reaching a consensus on the remuneration package of the Deputy Public Protector (DPP). The Committee and the Public Protector's Office had failed to reach agreement on the appropriate and reasonable salary package for the DPP.

Mr Mushwana stated that his Office held the view that the salary of DPP should be benchmarked against that of a Judge of the High Court. His views were substantiated by the current legislative provision of the Public Protector Act of 1994. Furthermore the current salary of Public Protector was benchmarked against that of Judge of Appeal Court. He argued that this proposal would help to create uniformity and would be consistent with legislation.

He pointed out that there were two Chief Directors at the Office on Level 14 which would place the DPP below their salary packages. Such a situation could lead to insubordination and compromise standards in the hierarchy of his organisation. Determining the salary structure of DPP in isolation could perpetuate the existing discrepancies in salaries amongst various Chapter 9 institutions. Formulating the salary structure of the DPP had to be done in conjunction with other Chapter 9 institutions.

Department of Public Services: Chief Director, Ms Sewpaul, explained that public servants were allowed to structure a portion of their packages according to their needs. An entertainment portion would generally come off the remuneration packages. The motor vehicle allowance was not included in the remuneration package proposed by the Department. The DPP would receive an annual salary of R615 000 per annum that was similar to the Judge of a High Court.

The Chairperson observed that the implications of variations of remuneration of officials were not necessarily vast. The Department was proposing R610 102 as a remuneration package inclusive of perks.

Mr Mushwana added that the difference in salaries only applied in respect of the perks.

Ms Sewpaul gave an account of all allowances allocated to the Public Protector as part of the remuneration package. The Department’s proposed salary package did not include allowances such as entertainment, medical, settlement and non-pensionable allowances. The DPP would receive a total package of R720 000 according to the proposal by the Department. Mr Mushwana also explained that these perks did not include the allowance for a vehicle.

Discussion
Ms S Camerer (DA) said it was shocking that the DPP would receive such enormous remuneration.

Mr Mushwana explained that the higher salary was justified by the fact that contract employees were remunerated higher than permanent employees. There was fixed-term contract attached to the position of DPP as opposed to judges who were permanent employees of the state. The Public Protector held the view that higher salaries could attract more skillful lawyers.

The Chairperson told the Public Protector that the Committee was not in favour of raising the salary of the DPP above the proposal made by the Department. Section 3(1) and (2)(a) of the Public Protector Act did not extend the provision of Judges of the High Court to the DPP. She pointed out that the Act stipulated that the remuneration of the Public Protector should not be less than the salaries of the Judges of the Supreme Court but not the Deputy Public Protector. The nature of the work done by the Deputy Public Protector required some form of public service experience and legal expertise. She argued strongly against equating the work of DPP with that done by the judges. Based on this, the salary of DPP should not be likened to that of judges. She noted that the Minister of Finance wanted to restructure and modernise salaries of the Judges of the High Court for the purposes of taxation.

Mr Mushwana indicated that the Public Protector was prejudiced in the comparison arising from the statute. He pointed out that Judges were not required to contribute towards their pension but the Public Protector was required by law to do so. Salaries of most staff of Chapter 9 institutions were not scientifically formulated and were difficult to justify as fair or not fair. A more equitable route was to stick to the directive contained in Section 2 of the Public Protector Act. He had already experienced difficulties related to discrepancies in salaries.

Ms Sewpaul explained that two Directors within the Office of the Public Protector were placed on Level 14 and in order to alleviate this problem it was critical that the DPP's salary be placed above that of the two directors.

The Chairperson proposed that the Department should continue to investigate the best possible remuneration package for the Deputy Public Protector. When Parliament resumed in August, she hoped for a workable solution would have been found by the Office of the Public Protector and the Department of Public Services and Administration. She added that the work of the Review Commission tasked with the review of all salaries and service conditions of Chapter 9 institutions would in future provide guidance on salaries for Chapter 9 institutions.

The meeting was adjourned

Appendix:
INVITATION FOR NOMINATION OF CANDIDATES FOR APPOINTMENT AS THE DEPUTY PUBLIC PROTECTOR
PRETORIA

Section 182 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) makes provision tot the establishment of the Office of the Public Sector. The Public Protector has the power, as regulated by national legislation, to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct to take appropriate remedial action, in order to strengthen and support constitutional democracy in the Republic.

The Public Protector Act, 1994 (Act No.23 of 1994) (the Public Protector Act), makes provision for, amongst others, the appointment of a Deputy Public Protector by the President on the recommendation of the National Assembly. Deputy Public Protector shall be appointed for such period as the President may determine at the time of such appointment, but not exceeding seven years. The Deputy Public Protector may at the end of his or her term office be reappointed for an additional term

The National Assembly hereby invites the public to nominate candidates for the appointment of the Deputy Public Protector.

Requirements
In terms of section 2A(4) of the Public Protector Act, the Deputy Public Protector must be a South African citizen who is a fit and proper person to hold such office, and who-

    1. is admitted as an advocate or attorney and has, for a cumulative period of at least 10 years after having been so admitted, practised as an advocate or an attorney; or
    2. is qualified admitted as an advocate or attorney and has, for a cumulative period of at least 10 years after having so qualified, lectured in law at a University; or
    3. has specialised knowledge of or experience, for a cumulative period of at least 10 years, in the administration of justice, public administration or public finance; or
    4. has, for a cumulative period of at least 10 years, been a member of Parliament; or
    5. has acquired any combination of experience mentioned in paragraphs (a) to (d), for a cumulative period of at least 10 years.

In addition to the requirements above the Deputy Public Protector must have excellent management skills and appropriate experience

Remuneration

An inclusive flexible remuneration package is offered at the level of notch 10 of a Chief Director, amounting to R 610 281 p.a., subject to the signing of a performance agreement with the Public Protector. The Deputy Public Protector may structure the total inclusive flexible remuneration package according to his or her individual needs in terms of the provisions relating to Senior Management Service in the Public Service Handbook

A copy of the performance agreement to be signed, as well as the contract of also to be signed, will be made available to the shortlisted candidates prior to the interviews being conducted.

Parliament is an equal opportunity, affirmative action employer. Nominations, accompanied by a motivation concerning the suitability of each candidate and comprehensive curriculum vitae, must be submitted within 30 days of the publication to Speaker of the National Assembly.

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