Constitutionality of City of Johannesburg’s VIP Protection Policy
On 2 January 2025, the Johannesburg High Court declared the City of Johannesburg’s Protection and Security for VIP Risk Management System Policy (the “Policy”) unconstitutional. The Court ruled that the Policy was inconsistent with the Remuneration of Public Office Bearers Act 20 of 1998 (the “Act”) and ministerial determinations issued in terms thereof, rendering it invalid.
Although the Council of the City of Johannesburg has stated that it does not intend to appeal the Court’s decision, it remains a fact that a policy was introduced with the aim of offering provisions that go beyond what could be considered “more than generous” in relation to the legislative framework and ministerial determinations. This is clearly demonstrated when the Policy is compared to the statutory provisions and associated determinations.
The Policy
The Policy, adopted by the Council of The City of Johannesburg on 20 March 2024, was a resolution aimed at providing protection and security to VIPs in transit, including the Executive Mayor, the Speaker, Members of the Executive Council, and Committee Chair of the Johannesburg Metropolitan Council.
The Policy initially allocated ten personal protection officers to the Executive Mayor (but was later reduced to eight), eight were allocated to the Speaker of the Council, and between two and five were allocated to the remaining Members of the Executive Council, for a total of 60 bodyguards.
The Remuneration of Public Office Bearers Act and Ministerial Determinations
The Remuneration of Public Office Bearers Act provides a framework for determining the remuneration, allowances and benefits which may be given to public office bearers, including Mayors, Speakers, and Members of the Executive Council.
Section 7 (1) of the Act requires the Minister, to determine the upper limit of the salaries and allowances of members of a municipal council.
Section 1 of the Act defines an allowance as “allowance, including out of pocket expenses, which forms part of an office bearer’s conditions of service, other than a salary and benefits”. The definition encompasses any additional benefits associated with a municipal councillor’s office, including the provision of personal security for the councillor.
The Minister issues determinations in the form of notices in the Government Gazette which sets the exact limits on how much personal protection services a municipal council can provide to its councillors.
Personal Security under the Ministerial Determinations
Personal security is deemed to form part of the “Tools of Trade” under section 15 of the ministerial determinations. “Tools of Trade” are defined as “the resources provided by a municipal council to a councillor to enable them to perform their duties in the most efficient and effective manner, while remaining the assets of the municipality at all times.” Under subsection (g), titled “Personal Security,” it states that “the Executive Mayor, Mayor, Deputy Executive Mayor, Deputy Mayor, Speaker, and Whip are entitled to two bodyguards per shift under a two-shift system.” Additionally, the section stipulates that any “deviation from this standard must be justified by recommendations from the South African Police Service.”
When comparing the Policy to the ministerial determinations, the Court’s finding that the Policy exceeded the limits set by the Remuneration of Public Office Bearers Act and the ministerial determinations becomes evident – while the determinations allow for “two bodyguards per shift under a two-shift system” for the Executive Mayor, Mayor, Deputy Executive Mayor, Deputy Mayor, Speaker, and Whip, the Policy allocated eight bodyguards to the Executive Mayor, eight to the Speaker, and up to five to other Members of the Executive Council.
The City failed to justify departure from the ministerial determinations by way of recommendations from the South African Police Service, as a consequence, the Court found that the Policy allocated generously more security than was permitted by the relevant legislative framework and ministerial determinations, rendering it unlawful and unconstitutional.
The Ruling of Invalidity
Judge Wilson of the Johannesburg High Court eloquently summed up his judgement by stating “What my judgment strikes at is the extension of illegal, round-the-clock, personal protection to particular councillors simply by virtue of the offices they hold. The city has given no reason why that illegality should be perpetuated beyond today.”
The Court’s decision underscores the importance of adhering to legislative frameworks and ensuring that public resources are allocated lawfully and responsibly. This judgment highlights the need for public office bearers to operate within the law, ensuring public trust and responsible use of resources.
In case you were wondering
The ministerial determinations prescribe the upper limits of the annual total remuneration packages of full-time councillors as follows:
The grade of a municipal council is determined according to the sum of points allocated based on the total municipal income of a municipality and points allocated based on the total population within a municipality.
For example, a municipality with an income of more than R 2,138,280,000 allocates 50.00 points, and a municipality with a population of more than more than 2 229 001 also gives 50.00 points, but a point value 83.36 and above corresponds to a grade 6 municipal council, granting the highest total remuneration package for a full-time councillor.
Ultimately, the total income and population of a municipality determines the upper limits of the annual total remuneration packages to which full-time councillors are entitled to.
The “total remuneration package” means the total cost to a municipality of a basic salary component, a motor vehicle allowance, housing allowance, the municipal contribution to a pension, provident or retirement annuity fund and municipal contribution to a medical aid scheme to a councillor in a municipal financial year. This does not include “tools of trade” under which personal security falls.
