SUBJECT: HABITUAL DELAYS BY THE NPA AND DEPARTMENT OF JUSTICE RE: REMUNERATION FOR PROSECUTORS

This is a statement by the Western Cape members of the Society of State Advocates in respect of the now habitual delays by the NPA arid Department of Justice in respect of remuneration for prosecutors.

The annual cost-of-living adjustment was supposed to have taken effect from July 2010. To date, the adjustment has not been paid to prosecutors. Furthermore the second phase of the Occupational Specific Dispensation (OSD) for prosecutors has also not yet been implemented. This has caused great frustration and disappointment amongst prosecutors and has even resulted in peaceful protests being conducted around the country. To achieve an understanding of the plight of prosecutors we wish to note the historical context of these delays.

History - cost-of-living adjustments

The cost of living adjustments ought to have been effected in July of the respective years. Unlike for other public servants, the adjustment in respect of prosecutors has been notoriously delayed. Thus in 2006, 2007 and 2008 the cost of living adjustment for prosecutors was only implemented in October.

On 11 November 2010 however, prosecutors were informed by way of official circular that "a memorandum has already been prepared and is being sent en route for the process of the determination of the cost-of-living adjustment for Prosecutors and Special Investigators as per the NPA Act, with effect from 1 July 2010."

There is no certainty as to what this could possibly mean. Moreover, we are informed that the CEO addressing a group of prosecutors in Gauteng indicated that the cost-of-living adjustments will not be implemented before end of January 2011. Prosecutors are now demanding that whatever "process of the determination" is required, it should be expedited to ensure that at the very least the cost-of-living for 2010 be implemented before the end of 2010.

It is wholly unsatisfactory that the Ministers and/or officials responsible for the implementation show such indifference towards prosecutors.

To add insult to injury prosecutors have not received 2009/2010 notch increments nor the performance bonuses, for which some were nominated, in terms of their 2009 performance contracts. This is a blatant disregard for the terms of the contract signed by each prosecutor with his/her supervisor representing the employer.

Moreover in a circular dated 15 November 2010 mention is simply made in passing that "departments are expected to adopt austerity measures with immediate effect.

Such measures could include the freezing of all vacant posts.. .cancelling performance bonuses for the 2010/2011 financial year..." Is it reasonable in the light thereof to expect prosecutors to have confidence in our employer or to show the utmost dedication in our work?

It is the consistently vague and non-committal, often careless or indifferent manner of communicating with prosecutors in respect of these issues, which further fuels the frustration of prosecutors. It is infuriating to prosecutors when promises made are repeatedly broken and simply never accounted for by the NPA management. This is particularly well illustrated in respect of the delays with the second-phase of the implementation of the OSD.

History - Occupational Specific Dispensation

On 14 December 2007 prosecutors were told that an NPA task team met the DPSA on 11 December 2007 to discuss the proposed OSD and that the DPSA favourably received a number of our (NPA) proposals... a deadline has been set for 15 January 2008 for the employers mandate to be finalised."

On 11 June 2008 prosecutors were informed that "the NPA has also met with National Treasury and the Department of Justice and Constitutional Development to discuss the funding of the OSD, and it was confirmed that funding issues will not delay the implementation of the OSD... I appeal to all staff to be patient..."

On 02 September 2008 a Settlement Agreement was reached between the Department of Justice and Constitutional Development (DOJ) and the National Education Health and Allied Workers Union (Nehawu) and subsequently the PSA in which it was agreed that "the verification of both qualifications and experience of employees shall be implemented immediately thereafter (after December 2008) and finalised by the 31 March 2009.

In numerous subsequent circulars (20/2009 dated 19 March 2009, circular 36 of 2009 dated 22 May 2009, circular 43/2009 dated 26 June 2009, circular 54/ 2009 dated 5 August 2009 and circular 55/2009) much the same content was repeated, stating much the same empty promise that "the NPA is taking every step possible to ensure that the second phase translation of employees through the once-off recalculation of salaries of affected employees as recognition of relevant legal experience is dealt with as speedily as possible taking into consideration all the outstanding challenges."

No doubt one of the greatest challenges in this process has been the constantly changing guard of officials (various acting appointments within the NPA) Directors General and Ministers in DOJ, OPSA and Finance who failed to drive the process with the expected level of efficiency and commitment to service delivery.

Most recently in circular 49/2010 dated 25 November 2010, regarding the OSD process, it was stated that finally the Ministers of Justice, of Public Service and Administration and of Finance approved and signed the OSD determination on 23 November 2010. The target date for the finalisation of the payment of Phase 2 of OSD is now 31 January 2011.

The long chronology of empty promises followed notwithstanding the settlement agreement reached between the DOJ and Nehawu that the second phase would be finalised by 31 March 2009. Is it truly reasonable or fair to expect prosecutors to "be patient" until 31 January 2011, a period of virtually two years?

To expect this of prosecutors is undoubtedly a severe indictment on the respective Ministers and senior NPA officials responsible for the process. A display of such patience by prosecutors in the circumstances would be a tribute to the commitment of prosecutors to their vocation, being the "people's lawyer".

Our gnawing concern, however, is that the situation of broken promises and apparent lack of accountability by responsible NPA officials and Ministers towards prosecutors will persist, even should the situation surrounding the OSD be resolved.

Our experience over the past few years has taught us that prosecutors should be circumspect in having any confidence in the NPA in respect of our remuneration. For these reasons we issue this statement in the hope that the public will understand the frustration of prosecutors. Whilst we implore our employer to respect our dignity as legal professionals, we wish to assure the public that we remain committed to the communities we serve.

Statement issued by the Western Cape members of the Society of State Advocates, November 29 2010

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