Authored by Kiasha Nagiah and Michael Balie.
The High Court has confirmed that public office-bearers are not employees and cannot claim leave payouts under institutional policies designed for employees. Where the law reserves to the President the power to determine a public office-bearer’s benefits, no institution may bypass that statutory scheme through internal policies or contractual arrangements.
The facts
A Commissioner for Gender Equality claimed compensation for 67 days of accumulated leave on leaving office, amounting to just over R250 000. The commissioner relied on the Commission for Gender Equality’s internal handbook and leave policy. The matter was settled by a payment to resolve the litigation, but the court determined the merits to clarify a point of public importance.
Public office-bearers are not employees
Public office-bearers are functionaries whose roles are defined in the Constitution or by statute. They perform vital constitutional functions and are free from ordinary workplace hierarchies of command and control. They derive their powers from the laws creating their office, and are accountable under those laws alone.
Under the Commission for Gender Equality Act, 1996, the President determines commissioners’ salaries, allowances and benefits on the advice of the Independent Commission for the Remuneration of Public Office-bearers, subject to the National Assembly’s approval. The Commission’s handbook and leave policy, to the extent they treated commissioners as employees entitled to leave, were not lawful.
Leave is a creature of the employment relationship
Both the Labour Relations Act, 1995 and the Basic Conditions of Employment Act, 1997 define an employee as a person, other than an independent contractor, who works for another person or for the state and receives, or is entitled to receive, remuneration. The definition includes anyone who assists in carrying on or conducting an employer’s business. Neither statute defines or expressly addresses public office-bearers.
Leave presumes the purchase of an employee’s labour power, which is then periodically granted back by way of a leave entitlement. The BCEA prescribes minimum leave entitlements including annual leave, sick leave and family responsibility leave but these apply only to employees bound by contracts of employment. Public office-bearers fall outside this framework entirely. As the court put it, when they are not exercising their powers, they are not “on leave”; they are simply inactive.
Practical implications
Organisations that engage both employees and non-employee statutory appointees must ensure their policies clearly distinguish between these categories. Extending employee-oriented policies to public office-bearers without legal scrutiny creates risk and potential fruitless expenditure. The principle of legality demands that a public institution cannot adopt an internal policy to confer benefits that only the President, acting within a prescribed statutory process, has the power to grant.
Botha v Commission for Gender Equality (2025/000337) [2026] ZAGPJHC 864 (5 August 2026)