<\/p>\n
Public office bearers in Chapter Nine institutions are not \u201cworkers\u201d who are entitled to benefits beyond what is laid down in the relevant statutes, the Johannesburg High Court has ruled.<\/p>\n
Judge Stuart Wilson\u2019s judgment sets the standard for defining the working conditions of commissioners appointed to serve on institutions such as the Commission for Gender Equality, the SA Human Rights Commission and the Public Protector.<\/p>\n
The matter before Wilson involved a dispute over the leave entitlement of gender equality commissioner Mbuyiselo Albert Botha.<\/p>\n
Wilson said the president usually appointed public office bearers but he did not \u201cemploy\u201d them. He did not have the power to supervise their work. The statutory scheme within which they operate is meant to guarantee them a degree of autonomy, he said. They are not accountable to a \u201cmanager\u201d or an \u201cemployer\u201d in the ordinary sense.<\/p>\n
Wilson said by way of illustration, judges are public office bearers who are \u201csubject to accountability grounded in the Constitution and in statute, rather than in the common law duty to obey an employer\u201d. This includes their salary and benefits.<\/p>\n
Read: Scopa RAF inquiry to probe alleged corruption between judges and lawyers<\/p>\n
Not even judge presidents or the chief justice have the power to instruct on the performance of judges\u2019 adjudicative functions. They are held to account through the appeals process or through a complaint to the Judicial Service Commission.<\/p>\n
\u201cIt follows from all of this, that public office bearers are wholly different from ordinary employees. They are free from ordinary workplace hierarchies of command and control.<\/p>\n
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\u201cWhile they have the right to fair labour practices, I have my doubts about whether they have the right to join a trade union, to strike and to bargain collectively for better pay and conditions.\u201d<\/p>\n
No room to negotiate<\/p>\n
While the president and the Independent Commission for the Remuneration of Public Office-bearers \u201cmay appropriately be criticised for failing to ensure that remuneration keeps pace with prices, or failing to provide capacity to discharge their functions effectively\u201d, generally speaking, public office bearers were bound to accept the salary and benefits attached to their office or seek better pay in the ordinary labour market, he said.<\/p>\n
He said the application before him was based on a \u201cfundamental misunderstanding\u201d of the nature of public office. Holding public office is an act of service, the judge said.<\/p>\n
Read: Finance Minister: Public service wage bill risk to SA\u2019s fiscal framework<\/p>\n
Botha was a commissioner until 31 May 2024, who believed he was entitled to be compensated for 67 days worth of accumulated leave, at a rate of R3 700 a day, and was claiming a lump sum of more than R250 000.<\/p>\n
He based this on the \u201ccommissioner\u2019s handbook\u201d and a \u201cleave policy\u201d. He argued that the policy represented a \u201cseparate contractual agreement\u201d between himself and the commission.<\/p>\n
Wilson said the policy had no lawful effect.<\/p>\n
\u201cA commissioner cannot bypass the statute by contracting for leave benefits with the commission itself, which has no power to grant them to its commissioners.<\/p>\n
\u201cCommissioners are not employees. To the extent that the handbook or leave policy purports to treat them as such, it is unlawful.<\/p>\n
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\u201cUnless a statute says so, public office bearers do not generally receive \u2018leave\u2019, since that presumes the purchase of an employee\u2019s labour power which is then granted back to the employee by way of leave entitlement.<\/p>\n
\u201cWhen they are not performing their constitutional and statutory functions, they are not on leave in the conventional sense. They are simply inactive.<\/p>\n
\u201cIt follows that Mr Botha was never entitled to leave and he is certainly not entitled to be compensated for not taking it.\u201d<\/p>\n
Wilson said the underlying dispute between Botha and the commission had been resolved before the hearing with an offer to \u201csettle the litigation\u201d by paying Botha R80 000 as an ex gratia payment.<\/p>\n
But the parties had asked that the merits of the application still be determined \u201cin order to clarify a point of some public importance\u201d, and to assist the commission in assessing the legality of its handbook and leave policy.<\/p>\n
The judge made the settlement agreement an order of court, and declared that gender commissioners may not lawfully accumulate leave.<\/p>\n
\u00a9 2026 GroundUp. This article was first published here.<\/p>\n
#High #court #shuts #benefit #claims #Chapter #public #officials<\/p>\n","protected":false},"excerpt":{"rendered":"
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