APPOINTMENT AND DETERMINATION OF CONDITIONS OF SERVICE OF DEPUT Y PUBLIC PROTECTOR
To: Madam Speaker
From: Public Protector
As you are aware, the process of the nomination of candidates for and the determination of the conditions of service of the Deputy Public Protector was referred to the Department of Justice and Constitutional Development (the Department) for assistance. The Deputy Minister of Justice and Constitutional Development (the Deputy Minister) addressed a letter to you and me on 23 February 2005, the contents of which are self-explanatory
We have noted that the Department is not supportive of our suggestions in regard to the remuneration of the Deputy Public Protector and wish to comment on/the reasons provided by the Deputy Minister, as follows:
2.1 Section 3(1) of Act established the position of Chief Administrative Officer in he Office of the Public Protector "for the purpose of assisting the Public Protector with all financial, administrative and clerical functions..."
2.2 The Chief Administrative Officer was appointed at the level of a Director in the Public Service and became the accounting officer of the Office, by virtue of section 4 of the Act.
2.3 Expansion of the institution resulted in a substantial increase in the staff complement and we had to establish several sections to attend to our growing needs. As appears from the Organisational Structure of the Office (see Annexure B) we were advised to create a Corporate Services Branch, which currently consist of Financial Management Services, Human source Management, Administrative Support Services and communication Services. Each of these sections is headed by a Director. The original position of Chief Administrative Officer was 'converted' to the position of Head: Administrative Support Services. This position is therefore not that of a Chief Executive Officer. The Incumbent however still acts as the accounting officer in terms of a temporary arrangement with National Treasury, until the Deputy Public Protector is appointed.
2.4 is therefore not totally correct that the appointment of the Deputy Public Protector is, "inconsistent with the PFMA" in particular having regards to the provisions of section 36(3) of the PFMA. It must be stated also that the current Chief Financial Officer is not a lawyer and the core functions of the Office of the Public Protector is investigations of complaints with resultant report writing as well as making specific commendations. The legal qualifications as confirmed in the Public Protector Act bear testimony to what is stated above.
3. The remuneration of the Deputy Public Protector
3.1 The comparisons drawn by the Department between the Office of the Public Protector and certain Boards and Commissions within the Justice cluster, do not take into account that:
3.1.1 The responsibilities of these institutions are divided amongst a number of embers, whilst the Public Protector takes sole responsibility for the performance of the functions of his/her office;
3.1.2 The remuneration of the Public Protector was determined by section (2)(a) of the Act to be not less than that of a judge of the High Court. Contrary to the position in respect of the Chairpersons of the said Commissions and Boards, the lowest level of the remuneration of the Public Protector is regulated by law. The Public Protector is currently remunerated at the level of a judge of the Supreme Court of Appeal.
"The Deputy Public Protector shall be a South African citizen who is a fit and proper person to hold such office, and who-
(a) is admitted as an advocate or an attorney and has, for a cumulative period of least ten years after having been so admitted, practiced as an advocate or attorney; or
(b) is qualified to be admitted as an advocate or an attorney and has, for a cumulative period of at least ten years after having so qualified1 lectured in law at a university; or
(c) has specialized knowledge of or experience, for a cumulative period of at least ten years, in the administration of justice, public administration or public finance, or
(d) has, for a cumulative period of at least ten years, been a member of Parliament; or
(d) has acquired any combination of experience mentioned in paragraphs (a) to (d), for a cumulative period of at least ten years."
No such requirements apply in respect of the Members, Chairpersons or Deputy Chairpersons of any of the other institutions referred to. Persons qualified to be nominated for the position of Deputy Public Protector are obviously in a high-income group and would not be interested in nomination if the remuneration of the Deputy Public Protector is not determined at an acceptable level.
We trust that the above will be of some assistance to you and the Committee and are looking forward to deliberate further on the issue, should we be provided with an opportunity to do so.
ADV M L MUSHWANA
PUBLC PROTEOR OF THE REPU ILIC OF SOUTH AFRICA