ATC210514:Report of the Portfolio Committee on Justice and Correctional Services on the Draft Notices determining the remuneration of the Public Protector, Deputy Public Protector and Commissioners of the South African Human Rights Commission with effect from 1 April 2020, dated 14 May 2021.

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the Draft Notices determining the remuneration of the Public Protector, Deputy Public Protector and Commissioners of the South African Human Rights Commission with effect from 1 April 2020, dated 14 May 2021.

 

1. The President has requested the National Assembly to consider the draft Noticesdetermining the remuneration payable to office bearers of independent constitutional institutions with effect from 1 April 2020.

 

1. The matter was referred to the Committeefor it to consider and report on the President’s proposed determination of the remuneration payable to the Public Protector, Deputy Public Protector and Commissioners of the South African Human Rights Commission.

 

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.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 23 of 1994 and South African Human Rights Commission Act 40 of 2013 to provide a process to determine the salaries of the office bearers of these constitutional institutions.

 

1. Section 2(2) of the Public Protector Act, 1994, read with section 17 of the Determination of Remuneration of Office Bearers on Independent Constitutional Institutions Laws Amendment Act, 2014, provides that the Public Protector is entitled to such salary, allowance 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.Section 2(3) 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. Concerning the Deputy Public Protector, 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. 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. Section 9(1)of the South African Human Rights Commission Act, 2013, read with section 17 of the Determination of Remuneration of Office Bearers on Independent Constitutional Institutions Laws Amendment Act, 2014, provides similarly with respect to the salaries, allowance and benefits of the full and part-time Commissioners of the South African Human Rights Commission.Section 9(5) of theSouth African Human Rights Commission Act, 2013, requires the President to submit the Notice to the National Assembly for approval, whether whole or in part, or disapproval, before publication.

 

1. The Independent Commission gazetted its recommendations on 31March 2021 (GG No. 44369, 31 March 2021). Having taken into account ofthe country’s fiscal position, the State’s wage bill and the impact of an increment for public office bearers on the fiscus and the general state of the economy which has been negatively affected by the COVID-19 pandemic, and affordability, among others, the Independent Commission recommended a 0% increase for all public office bearers, including office bearers of the independent constitutional institutions.

 

1. Having considered the serious economic situation of the country and the Independent Commission’s recommendation, the Presidenthas proposed to determine a 0% salary increment for all office bearers of the independent constitutional institutions with effect from 1 April 2020.

 

1. Concerning the proposed commencement date, namely 1 April 2020, the Committee is of the view that the proposed date does not comply with section 2(B) and section 2A(5B) of the Public Protector Act, 1994, and section 9(4) of the South African Human Rights Commission Act, 2013, as already more than a year has passed without the Notices having been published in the Gazette. The Committee, therefore, proposes that before the Notices are published, the proposed commencement date of 1 April 2020 is amended to bring the effective date in line with the legislative provisions mentioned.

 

Recommendation

 

1. The Committee recommends that the National Assembly resolve to approve the Noticesdetermining the remuneration of the Public Protector, Deputy Public Protector and Commissionersof the South African Human Rights with the condition that the President amends the commencement dates before publication of the Notices in the Gazette to bring the effective date in line with the relevant legislative provisions, namely section 2(B) and section 2A(5B) of the Public Protector Act, 1994, in the instance of the Public Protector and Deputy Public Protector and section 9(4) of the South African Human Rights Commission Act, 2013, in the case of the commissioners of the South African Human Rights Commission.

 

Report to be considered