Administration of Estates Amendment Bill: finalisation; Judicial Officers’ Remuneration Amendment Bill; Judicial Officers’ (Conditions of Service) Amendment Bill: briefing

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
23 October 2002
ADMINISTRATION OF ESTATES AMENDMENT BILL: FINALISATION; JUDICIAL OFFICERS’ REMUNERATION AMENDMENT BILL; JUDICIAL OFFICERS’ (CONDITIONS OF SERVICE) AMENDMENT BILL: BRIEFING
 
Chairperson: Adv J H De Lange (ANC)

Documents handed out:
Draft Regulations to the Black Administration Act, 38 of 1927 (Appendix 1)
Judges Compensation: Salaries and Benefits in Canada
The following documents are awaited; please email [email protected]
Judicial Officers’ Remuneration Amendment Bill
Judicial Officers’ (Conditions of Service) Amendment Bill
Submission by the Independent Commission for the Remuneration of Public Office Bearers (Appendix 2)

SUMMARY
The Committee considered the Regulations to the Black Administration Act with a view to putting into effect the Moseneke judgement. The Chair emphasised that in relation to the Regulations, it would be essential to ensure that all citizens at ground level are fully educated on their application as they would be most affected by the changes.

The salaries of Judicial Officers and the benefits accruing to their spouses or partners were discussed, with respect to the Judicial Officers’ Remuneration Amendment Bill. Following a ruling by the Constitutional Court in the Satchwell case, partners of judicial officers will be brought on par with spouses with respect to benefits, since their exclusion is unconstitutional. A provision to this effect would also be provided for Magistrates, through a regulation.

MINUTES
The Chair firstly referred to the legislation on crossing the floor and confirmed that the intention was to introduce a Bill around 8 November 2002. However, he explained that in terms of the Constitution, the House would not be able to vote on the matter until after the passing of one month. He was not aware of the situation relating to the current court cases. However, he pointed out that two applications had been launched at the same time. The Kwa-Zulu Natal case had been decided on 22 October 2002. However, he could not say what the situation was with the Constitutional Court case. He emphasized that although he knew nothing at this stage, it was clear that the intention of government would be to bring the legislation in line with the Constitution through an amendment.

Mr Jeffery (ANC) explained that the Minister had expressed his intention to introduce the Bill on 12 November 2002.

Mr De Lange added that comments would be required by 8 November 2002.

The Chair welcomed Ms Motsila to the Committee. She responded that she was honoured to be the whip of the Committee.

Administration of Estates Amendment Bill
The Chair explained that they would begin with the Regulations for the Administration of Estates Amendment Bill. He explained that although the Committee would not be approving the Regulations, they would at least look at them in order to ensure that all is well. He directed Mr Cronje to take the Committee through the Regulations, and wondered whether the department was happy that they would give effect to the Moseneke judgement.

Mr Cronje began by explaining that the document had been faxed to him on 22 October 2002. However, it had since been decided further that point 4 and point 5 would be omitted from the Regulation. He noted that the Regulations were rather problematic but that the problems could not be resolved without amending the law of succession. As such, they would presently deal only with the Moseneke judgement.
 
Mr Cronje explained that S 3 (1) of the Administration of Estates Act had been declared unconstitutional. As such, Regulation 2 sought to ensure that foreign property devolving by common law is administered by the magistrate in the jurisdiction of the deceased. He noted that the Constitutional Court had said that this situation would be invalid from 6 December 2002.

Mr Cronje noted that he was dealing with consequential amendments and the desire would be to change as little as possible. He explained that Regulation 4 (1) had been changed as a result. The effect of this was that Regulations 2 (a) and 2 (e) would only be dealt with by the Master. He pointed out that because these regulations dealt with foreign property, it would not be necessary to require an executor to do the work.

Mr Cronje noted that the definition and commencement of the Act were the only other amendments.

Mr Cronje explained that the effect of the Regulations would be that as far as african customary law estates are concerned, they would continue to be governed as in the present situation. This meant that they would continue to be administered according to African Customary Law. However, the magistrate would retain the authority to investigate and to appoint an executor if necessary.

The Chair wanted to know whether the Department was happy that this would provide a different legal system as of 5 December 2002.

Mr Cronje personally felt that the position would suffice.

The Chair stated that any doubts relating to the clarity of the Regulations would have to be clarified.

Mr Cronje explained that it would not be possible to holistically deal with the matter because the matter also turned on the law of succession.

The Chair stated that the Regulations emanated from the Black Administration Act. Thus he wondered whether the Regulations should not refer to the Act in order to clarify the position.

Mr Cronje proposed that they should use the wording from the Moseneke judgement instead of merely revoking S 3 (1).

The Chair said that it would be necessary to mention the Administration of Estates Amendment Act of 2002. In addition, reference would also have to be made to the fact that african customary law will still be dealt with by the Regulations. Without pre-empting the choice of a particular solution, the Chair called on Mr Cronje to make the Regulations clearer.

Mr Cronje found merit in the suggestion.

Mr Jeffery referred to the Regulations under the previous Act.

The Chair explained that african customary law would be dealt with as at present, pending the conclusion of a report by the SALC. Non-African customary law matters would be dealt with by the Administration of Estates Act.

Mr Swart asked who would decide whether african customary law applies.

The Chair explained that it would be a factual issue.

Adv Masutha pointed out that the magistrates would inevitably be the most accessible point in the system by virtue of their proximity to the people. He noted that the Master’s Office was previously located in Pretoria and that it made practical sense for people to turn to the magistrates.

The Chair agreed. He stated that the Committee would pass the Bill in good faith on 24 October 2002 and noted that he would expect the Department to clarify all uncertainties surrounding the regulations. The Committee would like to receive a copy of the proclamation.

The Chair concluded that the Committee had more or less dealt with the Moseneke judgment. As of 6 December 2002, a new regime would apply to african customary law intestate estates. He explained that they would be dealt with by the Master’s Office in terms of unified legislation for all persons within South Africa. Although in practice it would remain possible to seek help from magistrates, the situation would then be under the control of the Master and not of the Black Administration Act. He urged that the message be widely conveyed as it would be essential to ensure that people are informed. He emphasized the fact that if a Black South African dies intestate, african customary law will not operate at all as from 6 December 2002.

Mr Swart added that both White and Black South Africans would then be able to access the Magistrates Courts, thereby making the system more accessible to all persons.

The Chair stated that Mr Swart had raised an important point.

Adv Masutha added that justice would also be closer to White people.

The Chair agreed.

Ms Camerer hoped that the small amounts of money would not be stolen in the department.

The Chair explained that this money would never be turned over to the Department as the executor would be in charge of the deceased estate.

The Chair pointed out that the Master’s Office had now been decentralised and that this would reduce the burden in the Masters Office and would increase access for all citizens.

Mr Swart wondered whether the Committee could investigate the possibility of the amounts referred to in S 18, on intestate estates, being increased.

The Chair thought that the Department was looking into the matter.

Mr Cronje agreed and said that they were looking to introduce an amendment.

Ms Chohan-Kota referred to S 8 (3) of the Act and referred to the fact that marriages without certificates were criminalised. She found it strange that both the marriage officer and the married couple would be held liable for the offence.

Mr Cronje explained that she had referred to an existing provision in the Act.

Ms Chohan-Kota was satisfied.

Mr Cronje explained that they were presently amending S 3 (1) to provide that common law estates would be dealt with by the Master and that African customary law estates would remain governed by African customary law.

Ms Chohan-Kota wanted to know whether S 8 (3) would be retained.

The Chair responded affirmatively. He explained that it would not be possible to correct the entire Act at this stage. As such, the Committee was currently dealing with the Moseneke judgment.

The Chair looked to Mr Cronje and stated that the Department was currently awaiting the SALC report with a view to introducing further amendments.

Mr Cronje agreed.

The Chair found it unconstitutional that the entire Black Administration Act treated Black people as objects. He explained that the SALC was in the process of drafting a report for the replacement of the Act.

Adv Masutha stated that it was unfortunate that apartheid had lumped all Black persons into one system. It would be necessary to develop a specialized system for dealing with African customary law as these laws were generally more complicated than common laws.

Ms Camerer stated that the African customary law of succession would have to be changed.

The Chair explained that the law of succession was only one issue. The Black Administration Act regulated all aspects of the lives of Africans. However, he agreed that some areas would be more difficult to amend and that the law of succession would be one such area. Nevertheless, he stated that the Act would have to be replaced and it would not be appropriate to await the development of capacity before initiating the changes. In this regard he noted that it would be possible to amend existing laws through the inclusion of African customary laws and said that these would only be technical changes. He pointed out that the Constitutional Court would probably find the Act unconstitutional.

The Chair emphasized that he found it unacceptable that other Departments had not dealt with the issue and that it had taken his Department two years to respond to the Moseneke judgement!

Judicial Officers’ Remuneration Amendment Bill
The Chair reminded Mr De Lange that he had recently dealt with the salary mechanisms relating to the Judicial Officers Amendment Bill. He referred to the Satchwell judgment and explained that the court was in the process of rectifying the errors that it had made. In that regard, he reminded the Committee that the court order had found the incorrect law to be inconsistent. The Committee had also dealt with the same issues when dealing with the question whether same sex judge partners could transmit pensions between themselves.

The Chair explained that the Committee intern had done some research on the salary mechanisms in other countries and his report would be made available to the Members. The report indicated that two provinces in Canada used a similar salary mechanism. As such, it appeared that the salary mechanism was very driven in Canada. Nevertheless, the Chair noted that the mechanism was not widespread, and wondered whether other countries did not deal with salary mechanisms through government regulations.

The Chair added that the judiciary, particularly Judge Chaskalson, was also very keen for the adoption thereof. He did not think that the amendment would be passed before the end of 2002.

The Chair wanted to know how the salary and partners issues would be dealt with.

Mr De Lange said that he would deal with both matter simultaneously.

Judicial Officers (Conditions of Service) Amendment Bill
The Chair pointed out that he had always thought that the Judges Remuneration Bill applied only to judges.

Mr De Lange explained that they were dealing only with the Judicial Officers Amendment Bill at this stage.

Ad Clause 1
Mr De Lange explained that the footnotes in the document referred the Committee to the original clauses in the Bill as introduced by Parliament.

Mr De Lange stated that there would be a consequential amendment to the definition of ‘salary’.

The Chair directed Mr Lange to indicate whether the amendments would be new additions to the Bill or whether they were amendments to original clauses.

Mr De Lange responded that Clause 1 was the original Clause 21.

Ad clause 2
Mr De Lange stated that this was the original Clause 23. The amendment would be the result of changes to the Magistrates Act of 1993 as the Independent Commission would become involved in the determination of salaries.

Ad clause 2 (e) (8) (a) and (b)
Mr De Lange referred the Committee to the response from the Independent Commission (please see document attached), suggesting that the amendment should be included in the 1998 Act. He explained that whilst this position had originally been adopted, it became clear that this would be contrary to S 219 of the Constitution. As such, although the amendments did not seek to alter the conditions of service, it would be necessary to bring the legislation in line with the Constitution.

The Chair asked Mr De Lange to ensure that there would be a clear link between the two Acts.

Mr De Lange agreed.

The Chair proposed the expansion of the factors listed in Clause 2 (e) (8). He noted that the research document had indicated that it would be necessary to spell out the factors.

Ad clause 3
Mr De Lange said that this was the original Clause 24 and explained that the provision remain unchanged. He noted that there would be consequential amendments in light of the changes to the definitions section.

The Chair wanted to know whether ‘judge’ would include judges from other courts. He pointed out that it would be necessary to expand the definition for the purposes of this legislation as was the case with the Judicial Conduct Bill.

Mr De Lange added that it would probably be necessary to also broaden the definition of ‘magistrate’.

Ad clause 4
Mr De Lange stated that this was the original Clause 25 and explained that there were only consequential amendments therein.

The Chair pointed out that they had only really added the word ‘secretary’.

Ad clause 5
Mr De Lange explained that this was the original Clause 26 and that it would be an addition to the Schedule.

The Chair wondered whether the Treasury was aware of the amendment.

Mr De Lange said the Department was aware because consultations had been mandatory.

The Chair wanted to know whether they had agreed to the changes.

Mr De Lange was of the opinion that they had.

The Chair stated that the matter would have to be confirmed.

The Chair pointed out that the Bill did not indicate the extent to which the Independent Commission would have to consider the Act when sitting. He wondered whether an amendment should be inserted.

Mr De Lange responded that the Commission would have to take notice of all the amendments. As such, it would probably be necessary to include an amendment to that effect.

The Chair responded that the amendment would have to be included in this Act.

The Chair turned to the suggestion from the Secretariat and stated that the second option would be preferable to the option of creating a separate sub-committee.

Mr De Lange stated that he had been inclined to that effect.

Ms Chohan-Kota said that the second option seemed to be more viable. However, she felt that the inclusion of ‘any’ judge would be a flawed principle. She wondered whether the Committee had realized that the Chapter 9 institutions would be excluded, and stated that this meant that the commission would have to be completely separate from the judiciary.

The Chair wanted to know the relevant constitutional provision.

Mr De Lange directed him to S 219 (1) and S 219 (5).

The Chair realized that the Constitution had made provision for the situation at hand.

Ms Chohan-Kota pointed out that the Constitution was only framework legislation.

Mr De Lange explained that S 219 (2) dealt with the Commission.

Ms Chohan-Kota noted that this would only be to the extent that persons were covered in terms of S 219 (1).

The Chair pointed out that the matter was interesting. He wondered how then the committee could include into the Commission persons that were excluded by the Constitution. He stated that it was very clear that the Constitution had not envisaged that judges would be included in the Independent Commission and in the S 219 Commission, and wondered therefore whether the amendment would be constitutional at all.

The Chair asked whether it would be possible to introduce a provision wider than the scope of S 219 (5) through the creation of a broader framework allowing for the inclusion of persons not mention in the section.

Ms Chohan-Kota explained that the other option would be consider introducing separate mechanisms altogether. However, she stated that this would probably be worse at it could result in a disjuncture of considerations. Alternatively, she said that the Committee could opt for one mechanism and allow for the incorporation of the above-mentioned persons therein. Nevertheless, she personally felt that it was not entirely clear as to whether the creation of a broader framework would be entirely constitutional. However, in light of the apparent fact that the Constitutional Court has become increasingly technical, she proposed that the Committee should follow the thinking of the Constitutional Court.

The Chair stated that they would require a legal opinion on the issue raised by Ms Chohan-Kota and on the question whether the Committee could provide for a separate commission contrary to the one in S 219 (5).

Ms Chohan-Kota noted that subsection 5 referred to the Chapter 9 institutions. Thus she wondered whether it would be possible to adopt a separate body for judges alone and excluding these institutions. She pointed out that the Finance department would definitely be concerned.

The Chair directed Mr De Lange to include both alternatives in the Bill at this stage. He suggested that Mr De Lange should draw the attention of Judge Chaskalson to the matter in light of the fact that he strongly supports the amendment.

Judicial Officers’ (Conditions of Service) Amendment Bill
Clause 6: Amendment of Section 1 of Act 47 of 2001
Mr J De Lange, (Department of Justice and Constitutional Development), informed the Committee that the Department had prepared two definitions for the concept of a “partner”. The inclusion of a partner in the Act is in line with the new constitutional development in SA. Therefore the Committee should choose one of the definitions and modify it where it is necessary.

The Chairperson noted that the Committee is in agreement with the second option. However, the definition should specifically state clearly that it relates to judicial officers who are “not legally married”.

Mr De Lange held that the word “unmarried” was included to indicate that fact, but however if the Committee insist on the word “not legally married” then it would be inserted.

The Chairperson noted that legally there is a difference between “unmarried” and “not legally married” couples. Until the Constitutional Court decides on the validity of the ritual marriages, for example Muslim marriages, the Committee would adopt the word “not legally married” to cast down any doubts. Provision should be made for legally de-registering a partnership, just as spouses could legally obtain a divorce.

Mr De Lange concurred with this preposition and further held that Judge Chaskalson had also informally noted the importance of the inclusion of such a clause.

The Committee concurred.

Mr De Lange noted that the use of the word “salary” in Section 5 of the Act is confusing and ambiguous. He said that is why its deletion is necessary, especially since the Act does not provide a distinction between Section 5 salaries and salaries.

The Chairperson noted that the reason why there are Section 5 salaries is due to the fact that the Judges are regarded as such for life, even though they retire at the age of 75. Due to this fact it is therefore difficult to speak of the pension fund in relation to a Judge. However, he suggested that Mr De Lange meet with him to discuss any possible definition for Section 5 salaries.

Clauses 7 and 8
The Committee accepted the amendments to the Act in Clauses 7 and 8.

Clause 9: Amendment of Section 11 of Act 47 of 2001
The Chairperson proposed that a new clause, providing for the application of the provisions of Clause 9 mutatis mutandis to Magistrates, be created.

Mr De Lange held that while the Department acknowledged the importance of such a clause, it is of the view that this should be governed by regulation in the case of Magistrates. This view is based on the fact that the inclusion of such a clause would result in the amendment of the Magistrates Act, which governs the Magistrates’ salary.

The Chairperson, however, contended that this factor should be governed by the legislation. He therefore held that a clause be inserted stipulating that a regulation would be passed or, failing that, the Magistrate Act should be amended.

Mr De Lange then held that a clause would be inserted stating that the regulation governing the Magistrate would be passed.

Ms F Chohan-Khota asked why the children of judicial officers are excluded in the Act.

Mr De Lange held that the provisions of Clause 9 is in line with the provisions of the pension fund where only the surviving spouses or partners of the deceased benefit and not the children. He thereafter asked for clarity in cases where the Judge is survived by more that one spouse and the other one died before the money is issue, whether the money would be paid pro rata between the remaining spouses or the share of the deceased spouse fall away.

The Chairperson said that the question of what happens should one of the spouses die before his/her share is issued is still a moot point. He suggested that since this point affects only few Judges at the moment, it should be deferred while the Committee still consults for legal experts on the issue.

The Committee accepted Clause 10.

The Chairperson requested Mr De Lange to prepare the amendment effected by the Committee, so that they can be submitted to the Judges Commission for comment.

The meeting was adjourned.

Appendix 1:
GOVERNMENT NOTICE
DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
No. R.                                                                                                                           2002

The President of the Republic of South Africa has under section 23(10) of the Black Administration Act, 1927 (Act No. 38 of 1927), made the regulations in the Schedule.

                                                                                    SCHEDULE

Definitions
1.                                         In these regulations 'the Regulations" means the regulations published by Government Notice No. R200 of 6 February 1987.

Amendment of regulation 3
2.                                         Regulation 3 of the Regulations is hereby amended by the deletion of sub-regulation (1).

Amendment of regulation 4
3.                                         Regulation 4 of the Regulations is hereby amended by the substitution in sub-regulation (1) for the expression "regulation 2" of the expression "sub-regulations 2(a) and (e)".

Amendment of regulation 7
4.                                         Regulation 7 of the Regulations is hereby amended by the substitution in
sub-regulation (2) for the expression "Supreme Chief' of the expression "High
Court".

Deletion of regulation 7
5.                                         Regulation 9 of the regulations is hereby deleted.

Commencement
6.                                         These regulations shall come into operation on 5 December 2002.

Appendix 2:
INDEPENDENT COMMISSION FOR THE REMUNERATION OF
PUBLIC OFFICE BEARERS


REMUNERATION OF JUDICIAL OFFICE BEARERS

I refer to your letter of 10 September 2002

The Commission for the Remuneration of Public Office Bearers ("the Commission") in principle supports the inclusion of the remuneration of judicial office bearers to its mandate.

The following are the Commission's comments on the proposed amendments to the applicable legislation:

1                                          Regarding the potential conflict of interest, with the Commission Chairperson being a Judge

The question of a potential conflict of interests can be addressed in one of two ways.

Firstly, that the commission can have a sub-committee dealing with the remuneration of judicial officers, which sub-committee would not have a
 judicial officer, who still receives a salary in that capacity, as a member. This would entail.

·That there be a specific provisions in the remuneration of Public Office Bearers Act, 1997 (the 1997 Act) providing that:

oMatters relating to the remuneration of Judicial Officers shall be deliberated and decided upon by a sub-committee of the Commission specifically constituted for that purpose; and
QAt no time shall the positions of Chairperson and Deputy Chairperson be simultaneously occupied by persons who are Judicial Officers. This may be achieved by adding a proviso to section 3 (5) of the 1997 Act to that effect. This will enable the sub-committee to be presided by the Deputy Chairperson in the event, like at present, that the Chairperson is a Judicial Omcer.

·Alternatively, a provision may be made in the 1997 that any member of the Commission who is also a serving judicial officer should be excluded from deliberations on matters relating to Judicial Officers.

1.PROPOSED AMENDMENTS TO THE APPLICABLE ACTS

A matter that of concern is that there appears to be no intention of making consequential amendments to the Remuneration of Public Office Bearers Act, 1998 ("the 1998 Act").

The 1998 Act provides the manner in which the remuneration of the various categories of public office bearers is to be determined. In the same vein, provision would need to be made in that act, by way of amendments, for the manner of determining the remuneration of Magistrates and Judges. This would also necessitate the 1998 Act making reference to the Judges' Remuneration and Conditions of Employment Act as well as the Magistrates Act, and the two latter Acts also making cross-references to the 1998 Act in the same way as is intended for the 1997 Act.

The intended amendment to the definition of "office bearer" in the 1997 Act should also be made to the 1998 Act as it well.

We hope that you'll find the input to be of value. Please revert to us for any further clarification you may require.

Yours sincerely

ADV LE VILAKAZI
SECRETARY: INDEPENDENT COMMISSION FOR THE
REMUNERATION OF PUBLIC OFFICE BEARERS