- Mbuyiselo Botha, who previously served as a commissioner for Gender Equality, tried to claim payment for 67 days of unused leave after his term ended.
- Judge Stuart Wilson explained that commissioners are public office bearers, and their benefits are determined by law, not by employment policies.
- The court decided that the Commission’s leave policy cannot legally allow commissioners to accumulate leave.
Former Commission for Gender Equality (CGE) commissioner Mbuyiselo Botha has lost his attempt to be paid for 67 days of accumulated leave. The High Court in Johannesburg said that commissioners are public office bearers, not employees, and so they cannot lawfully receive leave benefits outside the rules set by law.
Judge Stuart Wilson, delivering the judgment, said the CGE did not have the legal power to grant leave benefits to commissioners through its internal policies. Their pay and benefits are set out in the Commission for Gender Equality Act.
Botha claimed over R250,000
Botha was a commissioner until 31 May 2024. After his term ended, he claimed just over R250,000 for 67 days of unused leave.
Botha based his claim on the Commission’s Handbook and leave policy. He argued that commissioners could save up leave days and carry them over to the end of their terms. He also said that because he was not an employee, the 22-day cap on leave payouts for employees should not apply to him.
Judge says public office is different from regular employment
Judge Wilson said Botha’s application was based on a misunderstanding of what it means to hold public office. He explained that commissioners are appointed by the President on the recommendation of the National Assembly. Their salaries, allowances and benefits are decided by law, not by employment contracts or workplace rules.
“The President does not employ those he appoints,” said Judge Wilson. The judge also said that public office bearers carry out constitutional and legal duties independently. They are accountable to the law, not to an employer like in a normal workplace.
Leave policy could not create legal rights for commissioners
Judge Wilson found that while the Commission could make leave policies for its employees, it did not have the power to give extra benefits to commissioners.
He said, “The Act leaves the decision about a commissioner’s benefits to the President… A commissioner cannot get around the law by making a deal with the Commission for extra leave benefits, since the Commission does not have the power to give them.”
The judge said that any rules in the Handbook or leave policy that treat commissioners as employees are unlawful. Judge Wilson also said, “Holding public office is about serving, not about personal gain.”
Settlement approved but legal point clarified
During the hearing, the Commission repeated its earlier offer to settle by paying Botha about R80,000, which is equal to 22 days’ leave, as a goodwill payment.
Judge Wilson made the settlement an order of court after the Commission confirmed the payment was only to settle the case, not to recognise any legal right under the leave policy.
Although the money dispute was settled, both parties wanted the court to decide on the legal issues because these are important for the public and will help the Commission review its Handbook and leave policy.
Court order
The court made the settlement agreement official, declared that Gender Equality commissioners cannot lawfully accumulate leave under the Commission’s policy and ordered each party to pay its own legal costs.
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