GOVT CAN BE SUED OVER PAY CUTS IF ...

MBABANE – Is it legal to reduce the remuneration of parliamentarians? This question emanates from the fact that the Royal Commission has an assignment to review the remuneration of politicians and other stakeholders in the government pay structure.

Following this assignment, the commission would have to tread carefully when dealing with the remuneration of politicians, according to the President of the Law Society of Swaziland (LSS).

Mandla Mkhwanazi said when a remuneration review is being implemented; the employer is not permitted to vary terms and conditions of the employee to a less favourable position than they were before.

Worse

The senior lawyer said the position of the law was clear that whatever that was enjoyed by the employee should not be altered to a worse position.
On the instance of the salary review for politicians, as proposed by Finance Circular No.2 of 2013, Mkhwanazi said the same principles of the law were clear.
“The politicians may challenge government if the terms and conditions of their employment are less favourable,” Mkhwanazi said.

Finance Circular No.2 of 2013 states that it shall be reviewed at minimum of every five years from the effective date by the established independent commission as appointed by His Majesty the King.
Further, the basic salary of the prime minister shall be benchmarked against similar-sized (by gross domestic product) Southern African Development Community (SADC) countries every two years; and discounted for economic conditions and the affordability of the government.

The annual review of salaries for parliamentarians, according to the circular, will be applied based on the civil service annual review rates.
 Further, all other parliamentarians’ salaries are determined as a ratio of the premier’s salary. The sliding scale ratio is a result of the authoritative hierarchy of the political structure.
Also, stakeholders who will be affected as they were engaged and approached by the Phil Mnisi-led Royal Commission is the Judiciary. The lawyer said Finance Circular No.2 of 2013 was strictly addressing two arms of government not the Judiciary in terms of remuneration.

He said judges stood a chance to negotiate against the proposed pay cut.

Perks

The legal guru suggested that judges could seek certain perks that would complement the proposed reduction in their salary.
He said even the ratio that was used based on the prime minister’s salary did not include the Judiciary but was limited to the Legislature and the Executive.
Meanwhile, our sister publication, the Times Sunday reported that Phil Mnisi, the Royal Commission’s Chairman, when asked whether cutting the salaries for the Judiciary would not be in violation of Section 141 (6) of the Constitution which states: “The salary, allowances, privileges and rights in respect of leave of absence, gratuity, pension and other conditions of service of a judge of a superior court or any judicial officer or other person exercising judicial power, shall not be varied to the disadvantage of that Judge or judicial officer or other person.”

Currently, the chief justice is paid a basic monthly salary of E73 051, an inducement allowance of E5 524 and entertainment allowances of E2 767.
Supreme Court Judges are paid a basic salary of E65 945 while High Court judges earn a basic salary of E60 346 a month.
Mnisi indicated that they would observe all laws as they went about reviewing the judges’ salaries.

“The process is ongoing and the commission is hard at work and will adhere to the laws of the country when and if called upon to engage in the consultations,” he said.
While the committee has been given an extended period of up to January 31, 2019 to complete the review, the chairman could not commit on when they expected to complete the process.

Commission

“(I am) unable to give a specific date on when the process will be completed but the commission is committed to complete as soon as possible and within the confines of the gazette that has been issued,” he added.
The current pay scale for judges came about after they were awarded a 32 per cent salary increase in July 2016, courtesy of Finance Circular No.1 of 2016.

This was hardly a month after they had been awarded a salary increase of between 13.4 per cent and 15 per cent in accordance with the Prescription of Salaries and Allowances of Judicial Officers Notice of 2016.
The chief justice is the second highest paid person from those paid under the Consolidation Fund after the PM, who now earns a basic salary of E77 197.

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