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of a wider class of functionaries known as “public office bearers”. Their status
as public office bearers has important consequences for their entitlement to
leave. Accordingly, I will begin by setting out what a public office bearer is.
Public office bearers
2 Public office bearers are functionaries whose roles are defined in the
Constitution, 1996 or by statute, and who perform vital constitutional functions,
such as the scrutiny and implementation of legislation, the development of
government policy, the investigation of human rights violations and the
adjudication of disputes . A core group of public office bearers is defined in
section 1 of the Independent Commission for the Remuneration of Public
Office-bearers Act 92 of 1997, but several other public offices are created in
other statutes, most notably in the statutes which regulate the various
institutions created in Chapter 9 of the Constitution.
3 The President usually appoints public office bearers, and is a public office
bearer himself. But the President does not “employ” those he appoints. Nor,
unless otherwise provided for, does the President’s power of appointment give
him any right to supervise the work of the public office bearers he appoints.
He may be responsible for setting their pay and benefits, and the state
generally will be under an obligation to ensure that a public office bearer has
the resources necessary to carry out their functions. But a public office
bearer’s basic duty is to perform their functions professionally and
independently, and the statutory scheme within which they operate is meant
to guarantee them the degree of autonomy they require to do so. It follows
that, save where statutorily prescribed, public office bearers are not
3
accountable to a “manager” or an “employer” in the ordinary sense. They
derive their powers and functions from the laws which create their office, and
are accountable to and under those laws, and those laws alone.
4 By way of illustration, Judges are public office bearers defined in chapter 8 of
the Constitution. They are responsible for the most important adjudicative
functions. Because they are public office bearers, Judges are subject to forms
of accountability grounded in the Constitution and in statute, rather than in the
common law duty to obey an employer. Unhappy litigants, and occasionally
their lawyers, regularly misunderstand this when they complain to the Judge
President of a particular court against the way a Judge on that court has
decided a case, or conducted themselves in the course of handling the
litigation. These complainants mistake the lawful structure of judicial
accountability. Judges President do not “manage” or discipline other Judges.
In the exercise of a court’s judicial functions, a Judge President is no more
than the first among equals (see, by comparison, the role of the Chief Justice
as defined in Justice Alliance of South Africa v President of the Republic of
South Africa 2011 (5) SA 388 (CC) at paragraphs 82 to 84).
5 Judges President are primarily responsible for apportioning judicial
workloads, determining when and where courts sit, monitoring the flow of
litigation through their courts and carrying out any other functions that the
Chief Justice may delegate to them (see sections 8 (4) and (6) of the Superior
Courts Act 10 of 2013). But neither they, nor the Chief Justice, have any power
to instruct a Judge on the performance of their adjudicative functions. Judges
President regularly provide advice and support that an individual Judge will be
4
slow to ignore or turn down, but, like all other public office bearers, individual
Judges themselves are responsible for determining how to discharge their
constitutional and statutory functions. They are held accountable through the
appeals process or through a complaint to the Judicial Service Commission
alleging a breach of the Code of Judicial Conduct. The Code itself and the
process for engaging it are prescribed by statute (see sections 12 and 14 to
33 of the Judicial Service Commission Act 9 of 1994). The same goes for the
appeals process (see sections 16 to 19 of the Superior Courts Act 10 of 2013).
6 Other public office bearers have similar structures of accountability. The
Commission for Gender Equality Act 39 of 1996 comprehensively regulates
the process of appointing, remunerating, resourcing and removing
Commissioners for Gender Equality. Commissioners are appointed by the
President on the recommendation of the National Assembly (section 3). The
President determines their “salary, allowances and benefits” after he has
considered the advice of the Independent Commission for the Remuneration
of Public Office-bearers. The National Assembly must approve any salary,
allowance or benefit so determined (section 8). Like all other public office
bearers, Commissioners for Gender Equality are expected to exercise their
powers and functions independently without fear, favour, bias or prejudice
(section 10). They may be removed from office by way of a prescribed
procedure if they fail to do this, or if they fail to discharge any other obligation
placed on them by law (section 3 (5)). The Commission for Gender Equality
has a Chairperson, but, as the title implies, the role of the Chairperson is not
to supervise the other commissioners, but, primarily, to call and chair meetings
of the Commission (section 5 (1)).
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7 It 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. Although section 23 (1) of the Constitution provides
“everyone”, including public office bearers, with the right to fair labour
practices, I have my doubts about whether public office bearers are “workers”
under section 23, with the general right to join a trade union, to strike and to
bargain collectively for better pay and conditions. The statutory structures
applicable to the determination of public office bearers’ salaries and benefits
seem to me to be incompatible with that proposition, but there is no need for
me to decide the issue.
8 It is, though, clear to me that public office bearers may not enter into contracts
with the state entities which control the institutions to which they are appointed
to enhance or reduce the salary and benefits to which they are statutorily
entitled. The salary and benefits which attach to a public office are determined
by the Constitution or by statute, and are subject only to the ordinary legal
controls placed on the exercise of constitutionally or statutorily conferred
powers.
9 The President and Independent Commission for the Remuneration of Public
Office-bearers may appropriately be criticised for failing to ensure that public
office bearers’ remuneration keeps pace with prices, or for failing to provide
public office bearers with the capacity to acquire the equipment they need to
discharge their functions effectively. They may even be upbraided for the way
these failures may ultimately undermine the institutions of democracy and
accountability they are charged with defending. But, generally speaking,
6
public office bearers are bound to accept the lawfully-determined salaries and
benefits which attach to their office, or else resign and seek better
remuneration in the ordinary labour market.
10 Holding public office is an act of service. It is not an acquisitive exercise. Most
South Africans would probably consider the pay and conditions that attach to
most public offices to be quite generous. But whether they are generous or
not, their preservation is justified only by the need to make acts of public
service practically possible for those whose qualifications and attributes make
them suitable for public office. Whether public office bearers are under- or
over-paid; whether their conditions of service are appropriate; and whether
they have the resources they need has nothing directly to do with whether this
or that salary is justified on the open market, the salary that a specific office
bearer could attract on the open market, or even whether a public office
bearer’s salary is “fair” to the individual who receives it. The primary question
is whether the salary, allowances and benefits afforded to public office bearers
are appropriate to ensure that the functions of the office are discharged as
well as they can be by appropriately qualified persons under the constitutional
and statutory provisions governing those functions, and in the context that
public office bearers do their work.
The applicant’s leave entitlement
11 It is important to set all of this out because this application is based on a
fundamental misunderstanding of the nature of public office, and the rights
and duties that attach to it. The applicant, Mr. Botha, was until 31 May 2024,
a Commissioner for Gender Equality. At the end of his period of office, Mr.
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Botha claimed that he was entitled to be compensated for 67 days’ worth of
“leave” he had accumulated but not taken while in office. This was, Mr. Botha
claimed, compensable at a rate of just over R3 700 per day, meaning that Mr.
Botha was entitled, he argued, to a lump-sum payment of just over R250 000.
12 Mr. Botha’s claim was based on an interpretation of two documents generated
at the Commission for Gender Equality. The first is the “Commissioners
Handbook” which provides that commissioners accumulate leave subject to
the Commission’s leave policy. The second is the Commission’s leave policy,
which provides that “[e]mployees shall be paid cash value in respect of unused
leave credit upon termination of services, such leave payout shall be capped
in line with entitled 22 working days per annual leave cycle” (paragraph
5.1.11). Mr Botha argues that, since he was not an employee, but a
commissioner, the 22-day cap does not apply to him, and the value of the full
67 days of leave he accumulated must be paid out. This much is clear, he
submits, from the Commissioners’ Handbook itself, which provides that
“[c]ommissioners’ leave is not forfeited but carried over until the end of their
term” (paragraph 5.3.6).
13 I need not consider whether Mr. Botha has correctly interpreted the leave
policy, since in my view the policy can have no lawful effect. Mr. Vilakazi, who
appeared for Mr. Botha, accepted that leave would be a “benefit” of Mr.
Botha’s engagement as a commissioner. He also accepted that benefits of
that nature are statutorily required to be determined by the President in
accordance with the provisions of the Commission for Gender Equality Act.
He argued, however, that the policy represented a separate contractual
8
agreement between the Commission and Mr. Botha, in terms of which a leave
entitlement was grafted on to the remuneration, benefits and allowances the
President has determined.
14 That submission is unsustainable. The Act reserves the power to determine a
commissioner’s benefits for the President. A commissioner cannot bypass the
statute by contracting for leave benefits with the Commission itself, which has
no power to grant them to its commissioners. It must of course reimburse
commissioners for out-of-pocket expenses, pay for the equipment
commissioners use, fund travel undertaken in the course and scope of their
duties, and do all the other things necessary to ensure commissioners can
perform their functions effectively. The Commission may also implement a
leave regime in respect of its employees. Its power to do so arises from its
status as an employer under a labour contract, read with the Basic Conditions
of Employment Act 75 of 1997. But, as everyone before me accepted,
commissioners are not employees of the Commission. To the extent that the
Commissioners Handbook or the Commission’s leave policy purports to treat
them as such, it is unlawful.
15 Unless a statute says so, public office bearers do not generally receive “leave”,
since leave presumes the purchase of an employee’s labour power which is
then granted back to the employee by way of a leave entitlement. Public office
bearers are not employees, and their labour power is not “purchased” when
the President appoints them. The public office bearer accepts (usually with a
profound sense of honour) the responsibility to perform the constitutional and
statutory functions assigned to them whenever and wherever required. When
9
they are not exercising those powers or performing those functions, public
officer bearers are not on leave. They are simply inactive.
16 It is up to the individual public office bearer to decide, within the constraints of
the legal duties that attach to their office, how best to exercise their powers
and perform their functions, and when to refrain from doing so. That will
obviously require co-ordination with other public office bearers (between
commissioners appointed to the same commission, or between Judges
appointed to the same court, for example), but the law generally leaves such
co-ordination to good faith co-operation between public office bearers who are
committed to performing their functions effectively. There is no compulsion
involved – whether from the President or otherwise – because it is presumed
that none is required between individuals who are committed, independent
and capable enough to be appointed or elected to public office.
17 There is, of course, statutory provision for Judges’ leave with the permission
of the relevant Judge President. The President has also been known to place
cabinet ministers on leave. But this leave is generally understood to be in the
nature of a sabbatical or a hiatus resulting from a disciplinary proceeding or
some form of incapacity, during which an office bearer will be relieved from
performing most or all of the functions of their office for a particular period. But
it is not “leave” in the conventional sense. In any event, since it is authorised
by statute or determined by the President, whose power to determine benefits
or grant leave is itself enshrined in statute, such leave presents no legal
problem.
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18 Neither Mr. Vilakazi, nor Ms. Mnqandi, who appeared for the Commission for
Gender Equality, argued that the “leave” granted in the Commission’s leave
policy had been authorised by statute or by the President after taking advice
from the Independent Commission on Public Office-bearers. It follows that Mr.
Botha was never entitled to it, and he is certainly not entitled to be
compensated for not taking it.
19 During the hearing before me, the Commission for Gender Equality repeated
a previous offer to settle the litigation by paying Mr. Botha just over R80 000
– an amount notionally equivalent to 22 days’ leave. The underlying dispute
between the parties was settled on that basis, and I was asked to make an
order by agreement that the Commission pay Mr. Botha that amount. I was
satisfied that this order was competent and proper only because the
Commission assured me that the payment was tendered as an ex gratia
amount to settle the litigation, and not pursuant to any obligation to pay Mr.
Botha out under the leave policy. Since the power to settle litigation in this way
must be an incident of the Commission’s capacity, as a juristic person, to sue
and be sued in its own name (see section 17 (1) of the Commission for Gender
Equality Act), I acceded to the parties’ request to make the agreement an order
of court. I would not have done so had the offer been made and accepted
pursuant to an agreement that the leave policy was valid and binding.
20 Both parties nevertheless asked me to determine the merits of the application
in order to clarify a point of some public importance, to assist the Commission
in assessing the legality of its Commissioners’ Handbook and leave policy,
and to decide the question of costs. The Commission asked for the costs of
12
For the Applicant: M Vilakazi
Instructed by Menzi Vilakazi Attorneys
For the Respondent: N L Mnqandi
(Heads of argument drawn by N Seme)
Kganare Khumalo Attorneys