Chapter Nine commissioners are not workers, high court rules

The Johannesburg High Court has ruled that public office bearers in Chapter Nine institutions are not “workers” entitled to benefits beyond what is laid down in the relevant statutes. Illustration: Lisa Nelson.

• The high court has ruled that commissioners at Chapter Nine institutions are public office bearers, not employees entitled to workplace benefits beyond those set out in legislation.
• The judge found that a former commissioner on the Commission for Gender Equality was not entitled to R250,000 in accumulated “leave”.
• The ruling clarifies that policies made by these institutions cannot create employment benefits for public office bearers where legislation does not provide for it.

Public office bearers in Chapter Nine institutions are not “workers” who are entitled to benefits beyond what is laid down in the relevant statutes, the Johannesburg High Court has ruled.

Judge Stuart Wilson’s 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.

The matter before Wilson involved a dispute over the leave entitlement of gender equality commissioner Mbuyiselo Albert Botha.

Wilson said the President usually appointed public office bearers but he did not “employ” 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 “manager” or an “employer” in the ordinary sense.

Wilson said by way of illustration, judges are public office bearers who are “subject to accountability grounded in the Constitution and in statute, rather than in the common law duty to obey an employer”. This includes their salary and benefits.

Not even judge presidents or the Chief Justice have the power to instruct on the performance of judges’ adjudicative functions. They are held to account through the appeals process or through a complaint to the Judicial Service Commission.

“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.

“While 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.”

While the President and the Independent Commission for the Remuneration of Public Office-bearers “may appropriately be criticised for failing to ensure that remuneration keeps pace with prices, or failing to provide capacity to discharge their functions effectively”, 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.

He said the application before him was based on a “fundamental misunderstanding” of the nature of public office. Holding public office is an act of service, the judge said.

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.

He based this on the “commissioner’s handbook” and a “leave policy”. He argued that the policy represented a “separate contractual agreement” between himself and the commission.

Wilson said the policy had no lawful effect.

“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.

“Commissioners are not employees. To the extent that the handbook or leave policy purports to treat them as such, it is unlawful.

“Unless a statute says so, public office bearers do not generally receive ‘leave’, since that presumes the purchase of an employee’s labour power which is then granted back to the employee by way of leave entitlement. When they are not performing their constitutional and statutory functions, they are not on leave in the conventional sense. They are simply inactive.

“It follows that Mr Botha was never entitled to leave and he is certainly not entitled to be compensated for not taking it.”

Wilson said the underlying dispute between Botha and the commission had been resolved before the hearing with an offer to “settle the litigation” by paying Botha R80,000 as an ex gratia payment.

But the parties had asked that the merits of the application still be determined “in order to clarify a point of some public importance”, and to assist the commission in assessing the legality of its handbook and leave policy.

The judge made the settlement agreement an order of court, and declared that gender commissioners may not lawfully accumulate leave.

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