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The Gauteng high court (Johannesburg), in a landmark judgment involving a leave dispute, has ruled that public office bearers are not to be treated as the employees of the institutions to which they are appointed.
Judge Stuart Wilson said on Wednesday that public officers may not contract with those institutions for remuneration and benefits outside the statutory framework applicable to the determination of that remuneration and those benefits.
Mbuyiselo Botha, who was until May 31 2024 a commissioner for Gender Equality, 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, Botha claimed, compensable at a rate of just over R3,700 per day, meaning that he was entitled, he argued, to a lump-sum payment of just over R250,000.
Botha contended that because he was a commissioner rather than an employee, the 22-day limit did not apply to him. He also relied on a provision in the handbook stating that commissioners’ leave “is not forfeited but carried over until the end of their term”.
Wilson rejected that argument, finding that commissioners are public office bearers whose remuneration and benefits are governed by statute rather than employment contracts.
“Public office bearers are not to be treated as the employees of the institutions to which they are appointed,” Wilson said.
He added that public office bearers “may not contract with those institutions for remuneration and benefits outside the statutory framework” governing those benefits.
The judge said the president appoints commissioners on the recommendation of the National Assembly and determines their salaries, allowances and benefits after considering the advice of the Independent Commission for the Remuneration of Public Office-bearers.
“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,” Wilson said.
He noted that while the Commission for Gender Equality can implement a leave policy for its employees, commissioners are not employees of the commission.
“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,” he said.
Wilson also found that any provisions in the Commissioner’s Handbook or the commission’s leave policy treating commissioners as employees were unlawful.
The judge went on to distinguish public office from employment, saying that unless legislation specifically provides otherwise, public office bearers do not generally receive leave in the employment-law sense.
“Public office bearers are not employees,” Wilson said. “When they are not exercising those powers or performing those functions, public office bearers are not on leave. They are simply inactive.”
In his order, Wilson declared that commissioners for Gender Equality, as public office bearers, may not lawfully accumulate leave in terms of the commission’s leave policy.
Wilson said during the hearing before him, the commission repeated a previous offer to settle the litigation by paying 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.”
Wilson said he was satisfied that this order was competent and proper only because the commission assured him that the payment was tendered as an out of goodwill amount to settle the litigation, and not pursuant to any obligation to pay Botha out under the leave policy.
Wilson 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.”
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