ATC201028: Report of the Portfolio Committee on Justice and Correctional Services on the Notice determining the remuneration of the Deputy Public Protector in terms of section 2A of the Public Protector Act, 1994 (Act No 23 of 1994), dated 28 October 2020

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the Notice determining the remuneration of the Deputy Public Protector in terms of section 2A of the Public Protector Act, 1994 (Act No 23 of 1994), dated 28 October 2020

 

1. In a letter to the Speaker, dated 18 August 2020, the President requested the National Assembly to consider the Notice determining the salary, benefits and allowances payable to the Deputy Public Protector in terms of section 2A of the Public Protector Act 23 of 1994.

 

1. On 24 August 2020, the matter was referred to the Committee for consideration and report and the Committee was briefed on 16 October 2020.

 

1. Section 219 (5) of the Constitution of the Republic of South Africa, 1996, provides that national legislation must establish frameworks for determining the salaries, allowances and benefits of judges, the Public Protector, the Auditor-General, and members of any commission provided for in the Constitution, including the broadcasting authority referred to section 192.

 

1. The Determination of Remuneration of Office Bearers on Independent Constitutional Institutions Laws Amendment Act 22 of 2014, which came into operation on 1 April 2019, creates the necessary framework to determine the salaries of office-bearers of the Chapter 9 institutions. Among others, the Act amends the Public Protector Act, 1994, to provide a process to determine the salaries of the Public Protector and Deputy Public Protector.

 

1. Until now, the empowering legislation applicable to each of the Chapter 9 institutions set out the process for determining the salaries of the relevant office bearers. As a result, the processes varied considerably and this has contributed to the marked discrepancies in salary levels between office bearers of these institutions.

 

1. Specifically, section 2A of the Public Protector Act, 1994, read with section 3 of the Determination of Remuneration of Office Bearers on Independent Constitutional Institutions Laws Amendment Act, 2014, provides that the Deputy Public Protector is entitled to such salary, allowances and benefits as determined by the President, from time to time, by notice in the Gazette, after taking into account the recommendations of the Independent Commission; and approved by the National Assembly.

 

1. Section 2A(5C) of the Public Protector Act, 1994, requires that the National Assembly resolve to approve the Notice, whether in whole or in part; or disapprove the determination, before publication.

 

1. The Independent Commission gazetted its recommendations on 13 February 2020 (GG No. 43019, 13 February 2020), having consulted with the institutions concerned and the relevant Minsters to better understand the remuneration of office bearers in the various independent constitutional institutions, as well as related concerns and challenges. The Commission, among others, recommended that the salary of the Deputy Public Protector be adjusted from R1 446 378 to R1 504 233.

 

1. In his letter dated, 18 August 2020, the President proposes that the Deputy Public Protector’s remuneration be set at R1 814 065 per annum. He explains that he had decided not to accept the Independent Commission’s recommendation in this instance as:

 

“Firstly, the gap between the salary of the Public Protector and her Deputy is considerable and is unique – no other Chapter 9 institution have such a significant gap between a head of an institution and their deputy.

 

Secondly, the current salary of the Deputy Public Protector sees her earning significantly less than the executive management of the institution over which she shares oversight, thus undermining her authority to fulfil her responsibilities.

 

Lastly, the salary earned by her predecessor was considerably higher than the salary she has been offered, and this difference was only communicated to her after she accepted the position and started her work.”

 

1. The President explains that he had not made his determination concerning the remuneration payable to the Deputy Public Protector at the same time as those applicable to the office-bearers of independent constitutional institutions, as the Deputy Public Protector Adv. K Gcaleka was newly appointed and he was still considering her position.

 

1. The President also indicated that he had consulted the Ministers of Finance and Justice and Correctional Services and both were in agreement with the determination.

 

1. The Committee notes that neither the President’s letter nor the accompanying Notice mention an effective date. However, the Committee is of the view that the determination should take effect from the date on which Adv. Gcaleka took office as Deputy Public Protector, namely 1 February 2020.

 

Recommendation

 

1. Having considered the matter referred to it, the Committee recommends that the National Assembly resolve to approve the Noticedetermining the remuneration of the Deputy Public Protectorin terms of section 2A of the Public Protector Act, 1994.

 

1. The Committee recommends further that the effective date of the determination be the date on which Adv. Gcaleka took up the office of Deputy Public Protector, namely 1 February 2020.

 

Report to be considered