Judges’ Remuneration and Conditions of Employment Bill; Criminal Procedure Second Amendment Bill; Extradition Treaty with Lesotho & Statute of Hague Conference on Private International Law: adoption

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Justice and Correctional Services

29 October 2001
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
30 October 2001
JUDGES’ REMUNERATION AND CONDITIONS OF EMPLOYMENT BILL; CRIMINAL PROCEDURE SECOND AMENDMENT BILL; EXTRADITION TREATY WITH LESOTHO & STATUTE OF HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW: ADOPTION
 
Chairperson:    Adv J H de Lange

Documents Handed Out
Criminal Procedure Second Amendment Bill [B45-2001] - Final Working Draft (email info@pmg.org.za)
Committee Report on the Criminal Procedure Second Amendment Bill (Appendix 1)
Judges’ Remuneration & Conditions of Employment Bill: Memorandum on Objects (Appendix 2)
Judges’ Remuneration and Conditions of Employment Bill [B72B-2001] (see Appendix 3)
Committee Report on the Judicial Officers Amendment Bill (see Appendix 4)
Extradition Treaty between RSA and Kingdom of Lesotho
Treaty on Mutual Legal Assistance in Criminal Matters between RSA and Kingdom of Lesotho
Statute of the Hague Conference on Private International Law

SUMMARY
The Committee finalised the Judges’ Remuneration and Conditions of Employment Bill and unanimously passed the Bill with amendments.

Thereafter, the Committee finalised the Criminal Procedure Second Amendment Bill. The State Law Advisors addressed the Committee on their concern that it was not proper to distinguish between represented and unrepresented accused in the application of the sentence bargaining provision. The Committee rejected this concern. The Bill was unanimously passed with amendments.

The treaties with Lesotho and the Statute of the Hague Conference on Private International Law were accepted.

MINUTES
Judges’ Remuneration and Conditions of Employment Bill
Adv de Lange (ANC) opened the meeting by asking the Committee to go through the Bill clause-by-clause noting any alterations or queries.  He said he hoped they could vote on the Bill thereafter. 

Clause 1 - Definitions
‘active service’
Adv de Lange confirmed he had spoken to the Minister regarding the alteration to sub-clause (1)(a) to read ’29 days.’  He reported that the Minister was satisfied with the change. 

‘Constitutional Court Judge’
Adv de Lange said he had checked the reason why the Bill said ‘(a) Chief Justice of South Africa’ whilst simply ‘(b) Deputy Chief Justice.’  The draft bill before the Committee was correct because it reflected the terminology of the Constitutional Amendment Bill. 

The Committee was satisfied with all the alterations made to the definitions clause.  There were no further amendments to this clause. 

Clause 2
Adv de Lange asked Mr Bassett, the drafter from the Justice Department, what was meant by the ‘amounts referred to in section 13’?  Mr Bassett said it referred to amounts contained within the regulations.  Adv de Lange asked if it was strictly a salary issue?  However, he left the matter there saying the Committee would be able to look at this again with the Judicial Officers Amendment Bill [B72-2001]. 

Adv de Lange said there was some confustion in sub-clause (5) in that the word ‘any’ should be replaced to read ‘the annual.’ 

There were no additional points. 

Clause 3
There were no further amendments to this clause. 

Clause 4
Adv de Lange suggested that sub-clause (4)(a) should be altered to read ‘held office as such immediately before.’  The Committee concurred. 

Clause 5
Adv de Lange asked if the Committee felt the reference to ‘that salary’ in sub-clause (2)(c) was clear enough?  The Committee and Mr Bassett were content that it was.
 
Adv de Lange said he had also spoken to the Minister regarding the problem that, potentially, the widower or widow of a judge who died within the first year of her or his appointment could receive a full salary, whilst someone who died after 12 years active service would only get 80 percent.  As this Bill was not creating the problem, the matter would be taken up again in the new year when the Committee looked at judges’ pensions again.  Accordingly, the Minister was happy that the provisions of this Bill should stay as the Committee proposed. 

Clause 6
There were no further amendments to this clause. 

Clause 7
Adv de Lange asked why sub-clause (3) referred to ‘salary’?  He wondered if this was the correct word. 

Mr Bassett said salary was the appropriate phrase.  Adv de Lange then asked why the other provisions in clause 7 related to ‘remuneration’?  Mr Bassett explained that the salary referred to was the one detailed in clause 5. 

Clause 8
There were no new suggestions.

Clause 9
Adv de Lange brought to the Committee’s attention the terms of sub-clause (1)(b), which now expressly referred back to clause 5 as they wished.

Clause 10
There were no new suggestions.

Clause 11
Mr Bassett questioned whether the phrase ‘other than in terms of this section’ was strictly necessary?  Adv de Lange said that whilst the clause had taken the ‘belts and braces’ approach to legal drafting, as they were creating new law it was not overly cautious.  Mr Bassett said he still found it unnecessary, so the Committee decided to delete the words. 

Dr Delport (DP) asked why the clause said ‘contemplated in terms of this Act’ and not simply ‘contemplated’?  The State Law Advisor agreed that the term was unnecessary and it was deleted. 

Clause 12
The Committee noted that the clause heading read rather strangely, but they decided to leave it unamended. 

Clauses 13 - 15
There were no new suggestions.

Clause 16
In addition to the previously decided upon changes (relating to the differing Regulations in place in the former Bophuthatswana and the Transkei) which the Committee were satisfied with, Adv de Lange further asked what was the position if the three sets of Regulations were inconsistent with each other?  Mr Rudman, a drafter from the Department of Justice, said that the Republic of South African regulations did not apply to all judges (no judge was subject to an overlapping regulation) so there was no immediate problem.  However, to rectify any potential inconsistency new Regulations could be issued covering the entire country.  Adv de Lange said he was very concerned that measures attempting to bring harmony to judges’ remuneration and employment conditions may be hampered through the regulations. 

Dr Delport (DP) suggested an amendment could be made to the clause as a temporary measure, until the regulations were amended.  He suggested that an alteration to sub-clause (1)(c) adding the words ‘with respect to those judges to which the regulations applied immediately prior to the Commencement of this Act’ between “force” and “until” would resolve the problem. 

Adv de Lange agreed and explained to the drafters that the nature of legislation was such that, if the parent Act of a Regulation was rationalised, this must impact on the regulation flowing from it.  It was not possible for Parliament to remove aspects from a parent Act yet leave in force the delegated legislation stemming from it.  He told Mr Bassett that whilst Dr Delport’s suggestion would help them in the meantime, the Department would be given three months to amend the regulations. 

Ms Magazi (ANC) asked why the clause said ‘the regulations…which are not inconsistent with this Act’?  Adv de Lange explained that it was to invalidate any regulations in place which did not conform with the terms of this Bill. 

Sub-clause (2)(b)(ii), which referred to the situation prior to the coming into force of the Interim Constitution, had already been subject to debate by the Committee and they had asked already for the words ‘of a High Court or Supreme Court’ to be altered to ‘in any court.’  This had not been done, so the Committee amended the sub-clause accordingly.  Dr Delport (DP) queried whether the term, which was repeated in (c) and (d), required amendment there also?  Adv de Lange said this was not necessary as those sub-clauses, unlike sub-clause (b), could relate to periods before or after the coming into force of the Interim Constitution. 

Clause 17
There were no new suggestions.

Clause 18
The Department of Justice had asked if the commencement of clause 16(4) of the Bill could be altered to allow for them to put the necessary funding in place to provide for its terms.  Clause 18 was amended accordingly.  The existing text was altered to become sub-clause (i) and a new sub-clause (ii) was added.  The clause then read

(i)         …; and
section 16(4) comes into operation on a date fixed by the President by Proclamation in the Gazette.

Schedule
There were no new suggestions.

Memorandum on the Objects
The Committee deliberated on the draft and made certain alterations.
 
Adv de Lange said the only slight nagging issue he had with the Bill was a purely structural criticism.  He would have rather had the terms relating to the Constitutional Court judges detailed first, followed by the other judges, but as the Committee were restrained by the structure of the original Act, this was not feasible.  He said that Mr Rudman had gone to try and clarify whether there was any problem over the situation with regard to widows.  The Department were of the opinion that the Bill only provided for those widows or widowers in receipt of a pension when the Act came into force (there being no provision for those who were widowed from the date of the Act’s commencement).  However, Adv de Lange decided that the Committee should vote on the Bill regardless as the issue could be re-opened if need be. 

The Bill was unanimously passed with amendments.

Committee Report on the Judges’ Remuneration and Conditions of Employment Bill
Adv de Lange read through the Report and the Committee made certain amendments. The most important was that Mr Bassett was asked to draft a new paragraph (8) relating to clause 16(1) to include an instruction to the Department of Justice to draft replacement Regulations to consolidate the existing three sets into one. 

The Committee unanimously passed the Report. 

The drafters were told by Adv de Lange that if there was any further confusion regarding the terms of the Bill they must resolve it today.  Further alterations could be made to the Bill at the NCOP stage, but all such changes were to be run past Adv de Lange first. 

Criminal Procedure Second Amendment Bill
The Committee read through the final version of the Bill in order to check it prior to voting on it.

Ms Camerer (NNP) noted an alteration to 105A (9)(c) in Clause 2  had been carried out in her absence.  She queried the acceptability of ‘convict’ rather than ‘find guilty’, her inference being that a finding of guilt had to precipitate a conviction.  However, she said that as the full sub-clause read ‘convict the accused of the offence charged’ her unease was probably misplaced. 

Mr Labuschagne, the drafter, said that the National Director of Public Prosecutions was unhappy with the word ‘directives’ being used throughout 105A (11) in Clause 2 as the Public Prosecutors Department liked to keep their directives confidential and this Bill could lead to confusion.  Adv de Lange said that this was not a valid criticism.  The Public Prosecutors would simply need to categorise some directives ‘private and confidential’ and some not. 

The State Law Advisor advised the Committee that there was disquiet over the proposal to deny the opportunity to enter into a ‘plea bargain agreement’ to an accused without legal representation. 

Adv de Lange said he could think of no possible justification for the State Law Advisors to take such a stance and spelt out cogently the Committee’s reasoning.  He pointed out that under no circumstances could it be argued that an unrepresented accused, who was potentially illiterate, had anything approaching parity of a negotiating position with the Prosecutor.  Further, as everyone who faced the potential of a prison sentence if convicted had the right to free legal representation, those individual’s whose cases would genuinely fill the courts, were targetted.  The aim of the Bill was not to weed out, for example, driving offences, but cases which would involve a lot of court time and personnel.  Further, the provisions of the Act ensured that no one could claim at a later date that they were hoodwinked by the Prosecutor, or did not understand the terms of the agreement, and so take up the very court space on an appeal point which the agreement had sought to free.  The State Law Advisor said he was being briefed by Mr Daniels, Chief State Law Advisor, at 1pm.  He would report back to the Committee during the afternoon session. 

Committee Report on the Criminal Procedure Second Amendment Bill
Adv de Lange read through the Report and the Committee made certain alterations to it in light of the amendments to the Bill.  The Committee also added: This report must be forwarded immediately to the National Director of Public Prosecutions for his attention.

Afternoon session:
State Law Advisor input on Criminal Procedure Second Amendment Bill
The State Law Advisors appeared before the Committee to discuss their reservations with Criminal Procedure Second Amendment Bill as they felt that it was not proper to distinguish between represented and unrepresented accused. They believed that unrepresented accused should also be able to enter into negotiations relating to sentence, and finally also be able to conclude a plea or sentence agreement. In the face of the argument that this mechanism was open to abuse, they countered that the magistrate or the court would be the final custodian of the accused’s rights, making sure that the accused had not been unfairly treated. The magistrate would be charged with the duty of making certain that the accused’s rights had not been violated and that all the elements of the crime were indeed admitted to.

Adv de Lange reminded the law advisors that it was their duty to advise the Committee on matters of law, matters of hard legal fact. It was not their place to express opinion on any matter. Instead their sole duty was to tell the Committee when proposed legislation goes against the grain of existing legislation or constitutional principle. He reiterated that the law advisors were not there to give their own views but to advise on legal fact. He asked the law advisors whether their statement was a statement of fact or the expression of the their own feeling.

The law advisors told the Committee that the statement was an opinion.

Adv de Lange reminded them that it was the Committee members who were paid to legislate. It was their function alone, as the legislature, to make policy decisions such as that, to make normative judgements. He told the law advisors that if the distinction was unconstitutional, then it would be completely different. However, it was not for the law advisors to comment on such a matter.

Ms S Camerer (NNP) asked the law advisors if they had been present when Adv de Lange had shared the reasons why the distinction should be made. She contiuned that the reason for the distinction was that the process was extremely open to abuse of the accused’s rights. She asked what their view on this matter was.

The law advisors reiterated that it would be the magistrate that would see that there was no abuse of the accused’s rights.

Adv de Lange interjected and said that besides the principle there would be practical problems. This would stem from the fact that most accused would not even know about the Bill. In this situation, where all accused could bargain, it would be the duty of the public prosecutor to ask all accused if they wanted to enter into sentence negotiations. In such a situation there was a lot the accused would need to know. How would one educate an accused enough to be able to negotiate on his sentence? How do you teach them a range of legal principles in a minute or two? He told the law advisors that there would be a number of practical problems on both sides. Even the Office of the National Director of Public Prosecutions had come before the Committee to ask for a staggered implementation of the Act. This was because of a feeling that they did not have the capacity to implement it nationally all at once.

Adv de Lange then signed the motion of desirability on the Bill and the Bill was accepted with amendments.

Extradition Treaty between Republic of South Africa and Kingdom of Lesotho
Mr Allers (Department of Justice) explained that at the end of 1996 Parliament had approved this extradition Treaty. The Treaty before the Committee was a streamlined version of the very same Treaty. The Treaty had been changed to instead provide in a broader sense what were extraditable offences.

Adv de Lange asked if there was anything in this Treaty that was different or out of the ordinary as far as extradition treaties went. Mr Allers said that there were no such variations and that the Treaty was a standard extradition Treaty.

Ms F I Chohan-Kota (ANC) said that she had recently been to Mozambique where she had learnt from the High Commissioner that there was no extradition treaty between Mozambique and South Africa. In light if this, she asked who dealt with these matters and proactively researched which countries South Africa needed to enter into such agreements with.

Mr Allers replied that there was something presently under consideration to deal with the situation between South Africa and Mozambique. Other than this, extradition treaties were usually achieved or negotiated through diplomatic processes.

Ms Chohan-Kota said she had asked her question in light of the fact that in the Mozambique High Commission there was a whole police force who dealt exclusively with cross-border crime.

Adv de Lange felt it would be a good idea to compile a list detailing with which countries South Africa presently had such treaties, whom they were currently undergoing negotiations with and who South Africa should have such an agreement with. He added that if one was serious about the fight against crime then arrangements such as these were of necessity.

None of the members objected to South Africa’s accession to this Treaty.

Treaty on Mutual Legal Assistance in Criminal Matters between RSA and Kingdom of Lesotho;
Statute of the Hague Conference on Private International Law
The other two treaties received a relatively sparse consideration. Adv de Lange simply asked if there were any financial implications. Mr Allers said that there was a R120 000 fee payable in relation to the Statue of the Hague Conference on Private International Law and this amount had already been provisionally budgeted for.

Adv de Lange noted that the Treaty on Mutual Legal Assistance in Criminal Matters between the Republic of South Africa and the Kingdom of Lesotho was just as important as the extradition Treaty, especially if one professed to be serious about the fight against crime.

All three of these international agreements were agreed to.

This meeting being one on the last Committee meetings for the year, and having passed yet another Bill, Adv de Lange took time to thank the Committee members. He commended all for their hard work and perseverance and gave thanks to those who had given administrative assistance.

The meeting was adjourned.

Appendix 1:
Report of the Portfolio Committee on Justice and Constitutional Development on the Criminal Procedure Second Amendment Bill [B 45 - 2001] (National Assembly - sec 75), dated 30 October 2001:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Criminal Procedure Second Amendment Bill [B 45 - 2001] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 45A - 2001], and endorses the classification of the Bill as a section 75 Bill.

The Committee wishes to report further, as follows:

1. In terms of the new section 105A(11), which is inserted in the Criminal Procedure Act, 1977 (Act No. 51 of 1977), by clause 2 of the Bill, the National Director of Public Prosecutions is required to issue directives regarding all matters which are reasonably necessary or expedient to be prescribed in order to achieve the objects of that section. However, in terms of clause 3 the Bill will commence on the date of publication in the . Hence some time will elapse between the commencement of the Bill and the issuing of the directives. As the provisions of the new section 105A will have limited application without the required directives being in place and in order to avoid any practical problems with the application of those provisions until such time as the directives have been issued, the Committee requests the National Director of Public Prosecutions to -

(a) authorise only senior members of the prosecuting authority, for example the Directors of Public Prosecutions, in terms of the new section 105A(1) to apply the provisions of that section during the period concerned; and

(b) give his immediate attention to the issuing of the required directives, in particular those dealing with offences referred to in the Schedule to the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), or any other offence for which a minimum penalty is prescribed in the law creating that offence.

2. The Committee further wishes to draw the attention of the National Director of Public Prosecutions to the provisions of -

(a) the new section 105A(11)(b)(iv), requiring the prosecuting authority to keep comprehensive records and statistics relating to the implementation and application of that section; and

(b) the new section 105A(12), in terms of which he is required to, at least once every year, submit those records and statistics to Parliament.

The Committee further requests him to ensure that those provisions are complied with diligently so as to enable the Committee and the Department of Justice and Constitutional Development to evaluate the efficiency of the new provisions and to amend those provisions to enhance their efficiency, if necessary.

3. This Report must be forwarded immediately to the National Director of Public Prosecutions for his attention.

Report to be considered.

Appendix 2:
MEMORANDUM  ON THE OBJECTS OF THE JUDGES' REMUNERATION AND CONDITIONS OF EMPLOYMENT BILL, 2001

1. After the Department of Justice and Constitutional Development had briefed the Portfolio Committee on Justice and Constitutional Development on the Judicial Officers Amendment Bill [B72-2001], the Committee considered the scope of all the issues dealt with in the Bill, most of which involve comprehensive and fundamental changes to existing laws. It also took into account the limited time remaining to deal with issues of this nature during the 2001 session of Parliament which is drawing to a close.  Lastly, it pointed out that the Judicial Officers Amendment Bill was only submitted to Parliament after 17 August 2001, the deadline for the submission of draft legislation to Parliament for consideration during the 2Q01 session of Parliament. In the light of the above the Committee was of the opinion that it should present its own Bill in terms of the Rules of Parliament in order to deal with only those urgent matters contained in the Judicial Officers Amendment Bill which cannot be held in abeyance until the 2002 session of Parliament.

2. The Committee was consequently of the view that it would be expedient to deal with those issues in the Judicial Officers Amendment Bill which emanate from the Republic of South Africa Constitution Amendment Bill, 2001, which relate to courts and the administration of justice, as contemplated in Chapter 8 of the Constitution, namely the Constitutional amendments which relate to-
(a)  the offices of Chief Justice of South Africa and Deputy Chief Justice and President and Deputy President of the Supreme Court of Appeal; and
(b)  the terms of office of Constitutional Court judges.

3. While confining itself to the issues referred to in paragraph 2, which entail amendments to virtually every section of the Judges' Remuneration arid Conditions of Employment Act, 1989 (Act No. 88 of 1989), the Committee came to the conclusion That, rather than to present cumbersome and cluttered amending legislation, it would he more appropriate to recommend an entirely new statute to regulate the remuneration and conditions of employment of judges, which would, at the same time, rationalise the laws regulating his important aspect of the administration of justice; hence the inclusion of provisions in the Bill which purport to make the draft legislation applicable throughout the Republic arid which envisage the repeal of the Judges' Remuneration and Conditions of Employment Act, 1989, and the corresponding legislation in the former homelands, which is still applicable in those geographical areas.

4. The Bill presented by the Committee consequently Iargely encapsulates the principles contained in the Judges’ Remuneration and Conditions of Employment Act, 1998; the main differences between the existing and the proposed legislation are to be found in the provisions which deal with the offices of Chief Justice of South Africa and Deputy Chief Justice and President and Deputy President of the Supreme Court of Appeal and the terms of office of Constitutional Court judges, the latter category, particularly, requiring comprehensive adaptations to the existing legislation. During the course of revisiting the provisions of the existing Judges' Remuneration and Conditions of Employment Act, 1989, to bring them into line with the Constitutional amendments, the Committee has also suggested amendments of a technical nature in an effort to streamline and improve the legislation as a whole.

5. As indicated above, the Committee intends finalising the issues not dealt with in the Judicial Officers Amendment Bill during the 2002 session of Parliament when those important issues and principles can be debated without any time constraints.

6.  The main objects of the Bill, which give rise to the amendments in question are the following:

(i) To make provision (or the head of the Constitutional Court to become the Chief Justice of South Africa and for the head of the Supreme Court of Appeal to become President of the Supreme Court of Appeal, in line with proposed Constitutional amendments.

(ii) To make provision for the offices of Deputy Chief Justice and Deputy president Of the Supreme Court of Appeal in the Judges' Remuneration and Conditions of Employment Act, 1 989, which are reflected in the Constitution.

(iii) To put Constitutional Court judges on similar footing as their colleagues in the Supreme Court of Appeal and the High Courts in respect of benefits accruing to them in terms of the legislation.

(iv) To make the legislation regulating the remuneration and conditions of employment of judges applicable throughout South Africa and to repeal the corresponding legislation in the former homelands.

7. DEPARTMENTS/BODIES/PERSONS CONSULTED

The Bill was made available to the Acting Chief Justice and the President of the Constitutional Court.

8. IMPLICATIONS FOR PROVINCES

None.

9. FINANCIAL IMPLICATIONS FOR STATE

None

10. PARLIAMENTARY PROCEDURE

The Committee, the State Law Advisers and the Department of Justice and Constitutional Development are of the opinion that this Bill must be dealt with in accordance with section 75 of the
Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.

Appendix 3:
JUDGES' REMUNERATION AND CONDITIONS OF EMPLOYMENT BILL

BILL

To provide for the remuneration and conditions of employment of judges of the Constitutional Court, the Supreme Court of Appeal and the High Courts; and for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

CHAPTER 1

DEFINITIONS
 (s 1)


Definitions and application of Act
1.         (1)        In this Act, unless the context indicates otherwise‑
'active service' means any service performed as a Constitutional Court judge or judge in a permanent capacity, irrespective of whether or not such service was performed prior to or after the date of commencement of this Act, and includes any continuous period -
(a)        of longer than 29 days of such service in an acting capacity prior to assuming office as a Constitutional Court judge or judge in a permanent capacity if such service was performed before the date of commencement of this Act;  and
(b)        of such service in an acting capacity prior to assuming office as a Constitutional Court judge or judge in a permanent capacity if such service was performed after the date of commencement of this Act;
‘annual salary’ means the annual salary and the allowance payable to a Constitutional Court judge and judge in terms of section 2;
'Constitution' means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
‘Constitutional Court judge' means any person holding the office of -
(a)        Chief Justice of South Africa;
(b)        Deputy Chief Justice;  or
(c)        judge of the Constitutional Court,
and includes  any person who, since 7 June 1994, held, the office of
-
(i)         President of the Constitutional Court;
(ii)         Deputy President of the Constitutional Court; or
(iii)        judge of the Constitutional Court;
'fixed date' is 1 April 1989 ;
'judge' means any person holding the office of -,
(a)        President or Deputy President of the Supreme Court of Appeal;
(b)        judge of the Supreme Court of Appeal;
(c)        Judge President or Deputy Judge President of any High Court;  or
(d)        judge of any High Court,
and includes any person who, at or since the fixed date, held the office of-
(i)         Chief Justice of South Africa or Deputy Chief Justice;
(ii)         judge of the Appellate Division of the Supreme Court of South Africa or of the Supreme Court of Appeal;

(iii)        Judge President or Deputy Judge President of any provincial or local division of the Supreme Court of South Africa or of any High Court;
(iv)        judge of any provincial or local division of the Supreme Court of South Africa or of any High Court; or
(v)        judge of any court of a homeland referred to in Item 16 of Schedule 6 to the Constitution, read with Item 1 thereof;
'Minister' means the Cabinet member responsible for the administration of justice;
'salary' means the salary payable to a Constitutional Court judge or judge in terms of section 5;
'service' means -
(a)        service as a  judge of the Supreme Court of Appeal or a High Court as contemplated in the Supreme Court Act, 1959 (Act No. 59 of 1959), in the same or a higher office held by the judge concerned on discharge from active service, or, with the approval of the  judge concerned, service in a lower office;
(b)        service as a chairperson or a member of a commission as contemplated in the Commissions Act, 1947 (Act No. 8 of 1947);
(c)        service as a chairperson or a member of a body or institution established by or under any law;  or
(d)        any other service which the Minister may request him or her to perform.
(2)        This Act applies to all Constitutional Court judges and judges -
(a)        to whom the Judges’ Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989) applied; and
(b)        to whom corresponding legislation in any homeland, as defined in Item 1 of Schedule 6 to the Constitution, which, immediately before the date of commencement of this Act, had not  been repealed,  applied.

CHAPTER 2
REMUNERATION AND CONDITIONS OF EMPLOYMENT OF CONSTITUTIONAL COURT JUDGES AND JUDGES
(ss 2‑11)

Annual salary of Constitutional Court judges and judges
2.         (1)        Any person who holds office as a Constitutional Court judge or as a judge, whether in an acting or permanent capacity, shall in respect thereof, in addition to the amounts referred to in section 13 and an allowance at the rate of R3 500 per annum, be paid an annual salary at a rate determined by the President by proclamation in the Gazette.
(2)        A proclamation in terms of subsection (1) may be issued with effect from a date which may not be earlier than one year prior to the date of the proclamation.
(3)        (a)        A copy of a proclamation issued under subsection (1) shall be submitted to Parliament within 14 days after publication thereof.
(b)        If Parliament rejects such proclamation or any provision thereof, such proclamation or provision shall thereafter cease to be of force and effect to the extent to which it was so rejected but without prejudice to the validity of anything done in terms of such proclamation up to the date upon which it so ceased to be of force and effect, or to any right, privilege, obligation or liability acquired, accrued or incurred as at the said date under and by virtue of such proclamation.
(4)        The allowance payable in terms of subsection (1) shall not be taxable, unless Parliament expressly provides otherwise.
(5)        The amount of the annual salary and allowance payable in terms of subsection (1), shall be paid as a direct charge against the National Revenue Fund.
(6)        No Constitutional Court judge may, without the consent of the Minister, accept, hold or perform any other office of profit or receive in respect of any service any fees, emoluments or other remuneration apart from his or her salary and any amount which may be payable to him or her in his or her capacity as a Constitutional Court judge.

Discharge of Constitutional Court judges and judges from active service
3.         (1)        A judge who holds office in a permanent capacity‑
(a)        shall, subject to the provisions of section 4, be discharged from active service on the date on which he or she attains the age of 70 years, if he or she has on that date completed a period of active service of not less than 10 years, or, if he or she has on that date not yet completed a period of 10 years' active service, on the date immediately following the day on which he or she completes a period of 10 years' active service;
(b)        who has already attained the age of 65 years and has performed active service for a period of 15 years, and who informs the Minister in writing that he or she no longer wishes to perform active service, shall be discharged by the President from active service;
(c)        may at any time be discharged by the President from active service if he or she becomes afflicted with a permanent infirmity of mind or body which renders him or her incapable of performing his or her official duties;  or
(d)        may at any time on his or her  request and with the approval of the President be discharged from active service if there is any reason which the President deems sufficient.
(2)        A Constitutional Court judge who holds office in terms of section 176(1) of the Constitution -
(a)        must, subject to the provisions of section 4(2) or (3), be discharged from active service as a Constitutional Court judge, on the date on which he or she -
(i)         attains the age of 70 years;  or
(ii)         has completed a 12 year term of office as a Constitutional Court judge,
whichever occurs first;
(b)        may at any time be discharged by the President from active service if he or she becomes afflicted with a permanent infirmity of mind or body which renders him or her incapable of performing his or her official duties;  or
(c)        may at any time on his or her  request and with the approval of the President be discharged from active service if there is any reason which the President deems sufficient.           

Continuation of active service by Constitutional Court judges and judges
4.         (1)        A judge who on attaining the age of 70 years has not yet completed 15 years' active service, may continue to perform active service to the date on which he or she completes a period of 15 years' active service or attains the age of 75 years, whichever occurs first, whereupon he or she must be discharged from active service.
(2)        A Constitutional Court judge whose 12 year term of office as a Constitutional Court  judge expires before he or she has completed 15 years' active service must, subject to subsection (3), continue to perform active service as a Constitutional Court judge to the date on which he or she completes a period of 15 years' active service, whereupon he or she must  be discharged from active service.
(3)        A Constitutional Court judge who, on attaining the age of 70 years, has not yet completed 15 years' active service, must continue to perform active service as a Constitutional Court judge to the date on which he or she completes a period of 15 years' active service or attains the age of 75 years, whichever occurs first, whereupon he or she must be discharged from active service.
(4)        (a)        A Constitutional Court judge who is discharged from active service in terms of section 3(2) or subsection (2) or (3) and who is also a judge contemplated in section 174(5) of the Constitution, may continue to perform active service as a judge in the court in which he or she held office as such immediately before he or she was appointed as a  Constitutional Court judge if-
(i)         he or she indicates his or her willingness to do so in writing to the President three months before he or she is so discharged from active service; and
(ii)         he or she still qualifies to hold office as such a judge in a permanent capacity in terms of section 3(1) or 4(1) of this Act.
(b)        Nothing in this Act precludes a Constitutional Court judge -
(i)         who is discharged from active service in terms of section 3(2) or subsection (2) or (3);  and
(ii)         who is not a judge contemplated in section 174(5) of the Constitution,
from being appointed to the office of judge in a court other than the Constitutional Court by the President on the advice of the Judicial Service Commission as contemplated in the Constitution, if he or she still qualifies to hold office as such a judge in a permanent capacity in terms of section 3(1) or 4(1) of this Act.
(c)        The holding of office by a judge referred to in paragraph (a) or (b) -
(i)         interrupts that judge's discharge from active service in terms of section 3(2) or subsection (2) or (3);  and
(ii)         suspends any salary payable in terms of section 5 to that judge pursuant to such discharge from active service.
(d)        The holding of office by a judge referred to in paragraph (a) or (b), entitles such a judge to an annual salary which-
(i)         is payable in terms of section 2;  and
(ii)         may not be less than the annual salary applicable to the highest office held as a Constitutional Court judge or a judge.

Salary payable to Constitutional Court judges and judges after discharge from active service
5.         (1)        Subject to subsection (2), a Constitutional Court judge or a judge who on or after the fixed date was or is discharged from active service in terms of section 3 or 4 shall be paid a salary in accordance with the formula‑
in which formula the factor‑
(a)        A represents the annual salary applicable to the highest office held by the Constitutional Court judge or judge concerned in a permanent capacity during the period of his or her active service: Provided that, subject to section 11(3)(a) and (5)(a), the factor 'A' in the said formula must be adjusted whenever the annual salary applicable to the highest office held by the Constitutional Court judge or judge concerned during the period of his or her active service, is increased;
(b)        B represents 15; and
(c)        C represents the period in years of active service of such Constitutional Court judge or judge.
(2)        The aggregate of the salary payable in terms of subsection (1) to a Constitutional Court judge or judge who was or is discharged from active service -
(a)        in terms of section 3 (1)(a), (c) or (d), 3(2) or 4(1), (2) or (3) shall not be less than 40 per cent of his or her highest annual salary during the period of his or her active service and shall not exceed such salary;
(b)        in terms of section 3(1) or 3(2) and has performed active service for a period of not less than 20 years, shall be equivalent to the annual salary applicable to the highest office held by him or her in a permanent capacity during his or her period of active service;
(c)        in terms of section 3 (1)(b), shall, subject to paragraph (b), be 80 per cent of his or her highest annual salary during the period of his or her active service, plus 2 per cent of that salary for every year of active service which he or she performs after attaining the age of 65 years;
(d)        in terms of section 3 (1)(c) or (d) or 3(2)(b) or (c) before he or she attains the age of 65 years, shall, subject to paragraph (b), be not more than 80 per cent of his or her highest annual salary during the period of his or her active service.
(3)        For the purposes of subsection (1) the period of active service in any particular office shall be calculated by the year and the month, and fractions of a month shall-
(a)        in respect of any active service performed before the date of commencement of this Act, be disregarded;  and
(b)        in respect of any active service performed after the date of commencement of this Act be taken into account.
(4)        If a Constitutional Court judge or  a  judge to whom a salary is payable in terms of this section dies, the payment of the salary shall cease with effect from the first day of the month following the month in which he or she died.

Gratuity payable to Constitutional Court judges and judges after discharge from active service
6.         (1)        Subject to the provisions of subsections (2), (3) and (4), any Constitutional Court judge or judge who on or after the fixed date  was or is discharged from active service in terms of section 3 or 4, shall, in addition to any salary payable to him or her in terms of section 5, be paid a gratuity which shall in respect of every office held by him or her in a permanent capacity during his or her active service be calculated in accordance with the formula‑
in which formula the factor‑
(a)        D represents the annual  salary which at the time of the discharge of such Constitutional Court judge or judge from active service was applicable to the office concerned;
(b)        E represents the period in years of active service, but not exceeding 20 years, of such a Constitutional Court judge or judge in the office concerned.
(2)        After the completion of 15 years' active service a Constitutional Court judge or judge shall once be entitled, if he or she so requests, to be paid the gratuity (or any part thereof) which has until the date of the request accrued in accordance with the formula in subsection (1).
(3)        After the completion of 20 years' active service a Constitutional Court judge or judge shall once be entitled, if he or she so requests, to be paid the gratuity (or any portion thereof) which has until that date accrued in accordance with the formula in subsection (1), or the balance available after the exercise of the power in terms of subsection (2).
(4)        A judge referred to in section 4(1) shall once be entitled, when he or she attains the age of 70 years and has completed not less than 10 years' active service, to be paid, if he or she so requests, the gratuity (or any portion thereof) which has until the date of that request accrued in accordance with the formula in subsection (1).
(5)        The total amount of any gratuity payable in terms of this section to a Constitutional Court judge or  judge shall not exceed three times his or her highest annual salary during the period of his or her active service.
(6)        For the purposes of this section the period of active service shall be calculated by the year and the month, and fractions of a month shall be taken into account.
(7)        Notwithstanding anything to the contrary contained in any other law, the gratuity payable to Constitutional Court judges or judges under this section shall not be taxable.

Performance of service by Constitutional Court judges and judges  discharged from active service
7.         (1)        (a)        A Constitutional Court judge or judge who has been discharged from active service, except a Constitutional Court judge or judge who has been discharged in terms of section 3(1)(b), (c) or (d) or (2)(b) or (c), who ‑
(i)         has not attained the age of 75 years must, subject to paragraph (c), be available to perform service until he or she attains the age of 75 years, for a period or periods which, in the aggregate, amount to three months a year:  Provided that such a Constitutional Court judge or judge may voluntarily perform more than three months' service a year, if his or her services are so requested; or
(ii)         has already attained the age of 75 years, may voluntarily perform further service, if his or her services are so requested-
if that Constitutional Court judge's or judge's mental and physical health enable him or her to perform such service.
(b)        Service contemplated in paragraph (a) of the definition of “service” in section 1 may only be performed if -
(i)         after consultation with the Judicial Service Commission, such service is requested by the Chief Justice, President of the Supreme Court of Appeal or the judge president in whose area of jurisdiction the Constitutional Court judge or judge resides or of the court to which he or she was attached when discharged from active service, or with his or her consent, any other judge president, in consultation with the Chief Justice or the said judge president, as the case may be;  and
(ii)         the Minister so approves.
(c)        Service as mentioned in paragraph (b), (c) or (d) of the definition of “service” in section 1 may be performed only with the consent of the Constitutional Court judge or judge concerned.
(2)        (a)        A Constitutional Court judge or judge who performs service in terms of subsection (1), as contemplated in paragraph (a) of the definition of "service" in section 1, shall, subject to paragraph (b)(ii), monthly be paid an additional amount in remuneration which is equal to the amount which at that time is payable to the holder of the office which he or she holds for that period.
(b)        A Constitutional Court judge or judge who performs service in terms of subsection (1) as contemplated in -
(i)         paragraphs (b) to (d) of the definition of "service" in section 1 ;  and
(ii)         the proviso to subsection(1)(a)(i) or in subsection(1)(a)(ii), read with paragraph (a) of the definition of “service” in section 1,
shall monthly be paid such remuneration as the President may determine.
(3)        The salary of a Constitutional Court judge or judge who contrary to subsection (1)(a)(i) fails to perform the minimum period of service referred to in that subsection if so requested, shall, for every full year during which he or she so fails, be reduced by two per cent: Provided that such reduction shall, in the aggregate, not amount to more than 10 per cent of such salary.
(4)        The registrar of the Supreme Court of Appeal or a High Court where a Constitutional Court judge or judge performs service in terms of subsection (1), shall notify the Director‑General: Justice and Constitutional Development immediately of the commencement and duration of the service.
(5)        The Director‑General: Justice and Constitutional Development shall keep a register of all service performed by Constitutional Court judges or judges in terms of subsection (1).

Performance of service as Chief Justice by Chief Justice or as President by President of Supreme Court of Appeal in certain circumstances
8.
        (a)        A Chief Justice  who becomes eligible for discharge from active service in terms of section 3(2)(a) or 4(2) or (3), may, at the request of the President, from the date on which he or she becomes so eligible for discharge from active service, continue to perform active service as Chief Justice of South Africa for a period determined by the President, which shall not extend beyond the date on which such Chief Justice attains the age of 75 years.
(b)        A President of the Supreme Court of Appeal  who becomes eligible for discharge from active service in terms of section 3(1)(a) or 4(1), may, at the request of the President, from the date on which he or she becomes so eligible for discharge from active service, continue to perform active service as President of the Supreme Court of Appeal for a period determined by the President, which may not extend beyond the date on which such President  of the Supreme Court of Appeal attains the age of 75 years.

Amount payable to surviving spouse of Constitutional Court judge and judge

9.         (1)        The surviving spouse of a Constitutional Court judge or judge who on or after the fixed date was or is discharged from active service in terms of section 3 or 4 or who died or dies while performing active service, shall be paid with effect from the first day of the month immediately succeeding the month in which he or she dies an amount‑
(a)        in the case of a surviving spouse of a Constitutional Court judge or judge who was so discharged from active service, equal to two thirds of the salary which was in terms of section 5 payable to that Constitutional Court judge or judge;  or
(b)        in the case of a surviving spouse of a Constitutional Court judge or judge who died while performing active service as a Constitutional Court judge or judge, equal to two thirds of the amount to which that Constitutional Court judge or judge would have been entitled in terms of section 5 if he or she was discharged from active service in terms of section 3 (1)(a) or (2)(a) on the date of his or her death.
(2)        The amount payable to the surviving spouse of a Constitutional Court  judge or judge in terms of subsection (1) shall be payable with effect from the first day of the month immediately succeeding the day on which he or she died, and shall be payable until the death of such spouse.

Gratuity payable to surviving spouse of Constitutional Court judge and judge
10.        If a gratuity referred to in section 6 would have been payable to a Constitutional Court judge or judge who died or dies on or after the fixed date had he or she not died but, on the date of his or her death, was discharged from active service in terms of section 3 or 4, there shall‑
(a)        if such Constitutional Court judge or judge is survived by a surviving spouse, be payable to such surviving spouse, in addition to any amount payable to that spouse in terms of section 9; or
(b)        if such Constitutional Court judge or judge is not survived by a spouse, be payable to the estate of such Constitutional Court judge or judge,
a gratuity which shall be equal to the amount of the gratuity which would have been so payable to such Constitutional Court judge or judge had he or she not died but was, on the date of his or her death, discharged from active service as aforesaid.

Resignation of Constitutional Court judges and judges from office in certain circumstances
11.        (1)        Any resignation by a Constitutional Court judge or judge which is not  contemplated in this Act precludes the payment of any benefits to such person in terms of this Act to which a Constitutional Court judge or judge would otherwise be entitled on discharge from active service.
(2)        A Constitutional Court judge who is a judge contemplated in section 174(5) of the Constitution or a judge who holds office in a permanent capacity, who already has attained the age of 65 years and has performed 15 years' active service may resign from office by notice in writing to the President that he or she no longer wishes to serve in the office of such judge, and shall vacate his or her office upon acceptance of such resignation.
(3)        A Constitutional Court judge or a judge referred to in subsection (2) shall be paid‑
(a)        a salary in accordance with the provisions of section 5: Provided that the proviso in section 5(1)(a) shall not apply in respect of him or her;
(b)        a gratuity in accordance with the formula set out in section 6(1).
(4)        A Constitutional Court judge who is not a judge contemplated in section 174(5) of the Constitution who has completed a 12 year term of office as a Constitutional Court judge or who has attained the age of 70 years, whichever occurs first, may resign from office by notice in writing to the President and must vacate his or her office upon acceptance by the President of such resignation.
(5)        A Constitutional Court judge referred to in subsection (4) must be paid-
(a)        a salary in accordance with the provisions of section 5: Provided that the proviso in section 5(1)(a) does not apply in respect of him or her;
(b)        a gratuity in accordance with the formula set out in section 6(1).
(6)        The provisions of section 6(7) apply with the necessary changes in respect of any gratuity payable in terms of this section.
(7)        The surviving spouse of a Constitutional Court judge or judge referred to in subsection (2) or (4) must, with effect from the first day of the month immediately succeeding the month in which he or she dies, be paid an amount equal to two thirds of the salary which was payable to that Constitutional Court judge or  judge in terms of subsection (3)(a) or  (5)(a), which amount shall be payable until the death of such spouse.   

CHAPTER 3
GENERAL PROVISIONS
(ss 12‑18)
Making available of motor vehicles to Constitutional Court judges and  judges

12.        A motor vehicle owned by the State may, on such conditions as the Minister may determine with the concurrence of the Minister of Transport, be made available to any person who holds office as a Constitutional Court judge or judge in a permanent or acting capacity, whether he or she performs active service or service, for use, in accordance with the conditions so determined, in the course of his or her official functions as well as for his or her private purposes.

Regulations

13.        (1)        The President may, after consultation by the Minister with the Chief Justice, the President of the Supreme Court of Appeal and the judges president of the respective High Courts, make regulations as to‑
(a)        arrangements regarding administrative recesses;
(b)        the periods for which and the circumstances under which and conditions upon which leave of absence may be granted to Constitutional Court judges or acting Constitutional Court judges , judges or acting judges;
(c)        the method of transport of such Constitutional Court judges or judges, and of Constitutional Court judges or judges on their discharge from active service or their vacation of office and of Constitutional Court judges or judges in the performance of service in terms of section 7, and of the members of their families and of the effects of Constitutional Court judges or judges or Constitutional Court judges or judges who have been discharged from active service or who have vacated their offices or Constitutional Court judges or judges who perform service in terms of section 7 or deceased Constitutional Court judges or judges, the amounts to be paid to Constitutional Court judges or judges or acting Constitutional Court judges or judges in connection with transport and subsistence, and the circumstances in which any such transport may be provided and any such amounts may be paid;
(d)        the amounts which may be paid to acting Constitutional Court judges or acting judges in connection with the maintenance by them of their practices as advocates or attorneys; and
(e)        the amounts payable to Constitutional Court judges and judges of the Supreme Court of Appeal in connection with their accommodation.
(2)        A regulation under subsection (1) may provide that an amount referred to in paragraph (c) or (d) of that subsection shall be calculated either in accordance with a scale or having regard to the expenses actually incurred in connection with the matter concerned.

Administration of Act
14.        The Director‑General: Justice and Constitutional Development shall, subject to the directions of the Minister, be charged with the general administration of this Act.

Method of payment of salaries, allowances and benefits
15.        Salaries, allowances and benefits payable in terms of sections 2, 5, 6,7, 9, 10 and 11 of this Act shall be paid as a direct charge against the National Revenue Fund and on such dates and in such manner as the Minister may from time to time determine.

Transitional provisions
16.        (1)        Notwithstanding the repeal of -
(a)        the Judges’ Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989);
(b)        the Judges’ Remuneration and Conditions of Employment Act, 1989 (Act No. 27 of 1989)(Bophuthatswana); and
(c)        Decree No. 19 (Judges’ Remuneration and Conditions of Service) of 1990 (Decree No. 19 of 1990) (Transkei),
by section 17 of this Act, the regulations which were made under the said Acts and were in force immediately before the date of commencement of this Act and which are not inconsistent with this Act, continue in force in respect of those judges to which the regulations applied immediately prior to the commencement of this Act until they are repealed, withdrawn or amended by regulations made under section 13 of this Act.
(2)        (a)        Any active service or service referred to in -
(i)         section 1 of the Judges' Remuneration and Conditions of Employment Act, 1989, (Act No. 27 of 1989) (Bophuthatswana);  or
(ii)         section 1 of Decree No. 19 (Judges' Remuneration and Conditions of Service) of 1990 (Decree No. 19 of 1990) (Transkei),
performed by a judge referred to in section 1 prior to the commencement of this Act is, for the purposes of this Act, deemed to be active service or service as contemplated in section 1(1) of this Act.                                               (b)        For the purposes of section 1(1) of this Act the word "service” in the definition of "active service" in section 1(1), preceding paragraph (a) thereof, is construed to include service performed by-
(i)         a judge of the Republic of South Africa, prior to the commencement of the Interim Constitution, who was seconded to serve as a judge in any court
of a homeland referred to in Item 16 of Schedule 6 to the Constitution, read with Item 1 thereof, while he or she was so seconded and so served;  or
(ii)         a judge in the former South West Africa prior to its independence and who, at the commencement of this Act holds office as  a judge of a High Court.
(c)        If a judge who has been seconded for active service or service as a judge
of a High Court or Supreme Court of a homeland as defined in Item 1 of Schedule 6 to the Constitution, dies or is discharged from active service while holding the office of chief justice of such a High Court or Supreme Court of such a homeland in a permanent capacity, his or her salary shall for the purposes of this Act be deemed to be that of a judge president of a High Court.
(d)        If a judge who has been seconded for service as a judge
of a High Court or Supreme Court of a homeland as defined in Item 1 of Schedule 6 to the Constitution, holds the office of chief justice of such a High Court or Supreme Court in a permanent or acting capacity, and if the amount of the salary and allowance payable to him or her in terms of section 2(1) is less than the amount of the salary and allowance payable in terms of that subsection to a judge president of a High Court, he or she shall, in addition to the salary and allowance payable to him or her as aforesaid, be paid an allowance equal to the difference between the amount of the salary and allowance payable to him or her as aforesaid and the amount of the salary and allowance payable as aforesaid to such a judge president.
(3)        Section 4 of Decree No. 19 (Judges' Remuneration and Conditions of Service) of 1990 (Decree No. 19 of 1990)(Transkei) continues to apply to any person to whom it applied at the date of commencement of this Act as if it had not been repealed.
(4)        (a)        Any person who retired as a judge in terms of the Judges'  Pensions Act, 1978 (Act No. 90 of 1978), and who, at the commencement of this Act receives a pension in terms of the said Judges' Pensions Act, 1978, is, from the date of commencement of this Act, entitled to an amount equal to two thirds of the salary payable to a judge contemplated in section 5(1) of this Act who held the same or a similar office to that of the retired judge on the date of the latter's retirement from office and who has the same number of years’ active service.
(b)        Any surviving spouse of a judge referred to in paragraph (a) who, at the commencement of this Act receives a pension in terms of the said Judges' Pensions Act, 1978, is, from the date of commencement of this Act entitled to a salary equal to one half of the salary of his or her deceased spouse contemplated in paragraph (a).

Repeal of laws
17.        The laws mentioned in the Schedule are hereby repealed to the extent set out in the third column thereof.

Short title and commencement

18.        (1)        This Act shall be called the Judges' Remuneration and Conditions of Employment Act,  2001.
(2)        Section 16(4) comes into operation on a date fixed by the President by proclamation in the Gazette.

SCHEDULE



No. and year of law


Title


Extent of repeal


Act 27 of 1989


Judges’ Remuneration and Conditions of Employment Act, 1989 (Bophuthatswana)


The whole


Act 88 of 1989


Judges’ Remuneration and Conditions of Employment Act, 1989


The whole


Decree 19 of 1990


Judges’ Remuneration and Conditions of Service, 1990 (Transkei)


The whole


Decree 43 of 1990


Supreme Court Decree, 1990 (Ciskei)


Section 5(1), (2) (3) and (4)


Act 139 of 1992


General Law Amendment Act, 1992


Sections 27 and 28


Act 91 of 1993


Judges’ Remuneration and Conditions of Employment Amendment Act, 1993


The whole


Act 129 of 1993


General Law Third Amendment Act, 1993


Section 71


Act 157 of 1993


General Law Fifth Amendment Act, 1993


Section 8


Act 204 of 1993


General Law Sixth Amendment Act, 1993


Section 15


Act 10 of 1994


Judges’ Remuneration and Conditions of Employment Amendment Act, 1994


The whole


Act 104 of 1996


Judicial Matters Amendment Act, 1996


Section 14


Act 77 of 1997


Judges’ Remuneration and Conditions of Employment Amendment Act, 1997


The whole


Appendix 4:
Report of the Portfolio Committee on Justice and Constitutional Development on the Judicial Officers Amendment Bill [B 72 - 2001] (National Assembly - sec 75), dated 30 October 2001:

A. The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Judicial Officers Amendment Bill [B 72 - 2001] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill -

1. recommends that, because of the delay with the introduction of the Bill in Parliament after the deadline of 17 August 2001, and pursuant time constraints, some of the provisions of the Bill be held in abeyance until the 2002 session of Parliament;

2. presents the Judges' Remuneration and Conditions of Employment Bill [B 83 - 2001] (National Assembly - sec 75); and

3. regards the classification of the Judges' Remuneration and Conditions of Employment Bill [B 83 - 2001] as a section 75 Bill.

B. The Committee wishes to report further, as follows:

1. The Committee -

(a) having been briefed by the Department of Justice and Constitutional Development on the Judicial Officers Amendment Bill;

(b) having received written submissions on the Bill and having held public hearings thereon;

(c) having considered the scope of all the issues dealt with in the Bill, most of which involve comprehensive and fundamental changes to existing laws;

(d) having pointed out that the Bill was only submitted to Parliament after 17 August 2001, the deadline for the submission of draft legislation to Parliament for consideration during the 2001 session of Parliament; and

(e) having taken into account the limited time remaining to deal with issues of this nature during this 2001 session of Parliament, which is drawing to a close,

was of the opinion that it should present its own Bill, in terms of the Rules of Parliament, in order to deal with only those urgent matters contained in the Judicial Officers Amendment Bill which cannot be held in abeyance until the 2002 session of Parliament.

2. The Committee was consequently of the view that it would be expedient to deal with those issues in the Judicial Officers Amendment Bill which emanate from the Republic of South Africa Constitution Amendment Bill, 2001, which relate to courts and the administration of justice, as contemplated in Chapter 8 of the Constitution, namely the constitutional amendments relating to -

(a) the offices of Chief Justice of South Africa and Deputy Chief Justice and President and Deputy President of the Supreme Court of Appeal; and

(b) the terms of office of Constitutional Court judges.

3. Whilst confining itself to the issues referred to in paragraph 2 above, which entail amendments to virtually every section of the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), the Committee came to the conclusion that, rather than to present cumbersome and cluttered amending legislation, it would be more appropriate to recommend an entirely new statute to regulate the remuneration and conditions of employment of Constitutional Court judges and judges. This would, at the same time, rationalise the laws regulating this important aspect of the administration of justice, hence the inclusion of provisions in the Bill which purport to make the legislation applicable throughout the Republic and which envisage the repeal of the Judges' Remuneration and Conditions of Employment Act, 1989, and the corresponding legislation in the former homelands, which is still applicable in those geographical areas.

4. The Judges' Remuneration and Conditions of Employment Bill, 2001, presented by the Committee, largely encapsulates the principles contained in the Judges' Remuneration and Conditions of Employment Act, 1989. The main differences between the existing legislation and the proposed legislation are to be found in the provisions which deal with the offices of Chief Justice of South Africa and Deputy Chief Justice and President and Deputy President of the Supreme Court of Appeal and the terms of office of Constitutional Court judges, the latter category in particular requiring comprehensive adaptations to the existing legislation.

During the course of revisiting the provisions of the existing Judges' Remuneration and Conditions of Employment Act, 1989, to bring them into line with the constitutional amendments, the Committee has also suggested amendments of a technical nature in an effort to streamline and improve the legislation as a whole.

5. As indicated in paragraph 1 above, the Committee intends finalising the issues not dealt with in the Judicial Officers Amendment Bill during the 2002 session of Parliament, when those important issues and principles can be debated without any time constraints.

6. During its deliberations on the Bill, the Committee's attention was drawn to the fact that the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), which regulates the remuneration and conditions of employment of judges, is silent on the position of a judge who is removed from office in terms of section 177 of the Constitution (impeachment). The question was raised whether a judge who is so removed from office should receive any benefits, and if so, what benefits.

The Committee consequently recommends that the Department of Justice and Constitutional Development be requested to investigate this aspect and to submit appropriate legislative proposals regarding the matter to the Committee at the beginning of the 2002 session of Parliament, when it considers those provisions of the Judicial Officers Amendment Bill which have been held in abeyance until then.

7. The Committee was also at pains to point out that -

(a) both the Constitution of the Republic of South Africa Amendment Bill, 2001, and the Judges' Remuneration and Conditions of Employment Bill, 2001, save for Clause 16(4) of the latter Bill, do not contain commencement provisions; and

(b) it is consequently imperative to ensure that the Constitution of the Republic of South Africa Amendment Bill, 2001, is enacted into law before the Judges' Remuneration and Conditions of Employment Bill, 2001, but not later than 20 November 2001, since, as mentioned in paragraph 2 above, some of the provisions of the latter Bill emanate from provisions contained in the said constitutional amendments.

8. Clause 16(1) provides for the continuation of regulations made in terms of the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 27 of 1989 (Bophuthatswana), and Decree No. 19 (Judges' Remuneration and Conditions of Service (of 1990) (Decree No. 19 of 1990) (Transkei). In the interests of legal certainty, the Committee requests the Department to address this issue and to prepare and promote one set of regulations in terms of Clause 13 as a matter of urgency, but within three months after the adoption of this Report.

Report to be considered.

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
30 October 2001
JUDGES’ REMUNERATION AND CONDITIONS OF EMPLOYMENT BILL; CRIMINAL PROCEDURE SECOND AMENDMENT BILL; EXTRADITION TREATY WITH LESOTHO & STATUTE OF HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW: ADOPTION
 
Chairperson:    Adv J H de Lange

Documents Handed Out
Criminal Procedure Second Amendment Bill [B45-2001] - Final Working Draft (email info@pmg.org.za)
Committee Report on the Criminal Procedure Second Amendment Bill (Appendix 1)
Judges’ Remuneration & Conditions of Employment Bill: Memorandum on Objects (Appendix 2)
Judges’ Remuneration and Conditions of Employment Bill [B72B-2001] (see Appendix 3)
Committee Report on the Judicial Officers Amendment Bill (see Appendix 4)
Extradition Treaty between RSA and Kingdom of Lesotho
Treaty on Mutual Legal Assistance in Criminal Matters between RSA and Kingdom of Lesotho
Statute of the Hague Conference on Private International Law

SUMMARY
The Committee finalised the Judges’ Remuneration and Conditions of Employment Bill and unanimously passed the Bill with amendments.

Thereafter, the Committee finalised the Criminal Procedure Second Amendment Bill. The State Law Advisors addressed the Committee on their concern that it was not proper to distinguish between represented and unrepresented accused in the application of the sentence bargaining provision. The Committee rejected this concern. The Bill was unanimously passed with amendments.

The treaties with Lesotho and the Statute of the Hague Conference on Private International Law were accepted.

MINUTES
Judges’ Remuneration and Conditions of Employment Bill
Adv de Lange (ANC) opened the meeting by asking the Committee to go through the Bill clause-by-clause noting any alterations or queries.  He said he hoped they could vote on the Bill thereafter. 

Clause 1 - Definitions
‘active service’
Adv de Lange confirmed he had spoken to the Minister regarding the alteration to sub-clause (1)(a) to read ’29 days.’  He reported that the Minister was satisfied with the change. 

‘Constitutional Court Judge’
Adv de Lange said he had checked the reason why the Bill said ‘(a) Chief Justice of South Africa’ whilst simply ‘(b) Deputy Chief Justice.’  The draft bill before the Committee was correct because it reflected the terminology of the Constitutional Amendment Bill. 

The Committee was satisfied with all the alterations made to the definitions clause.  There were no further amendments to this clause. 

Clause 2
Adv de Lange asked Mr Bassett, the drafter from the Justice Department, what was meant by the ‘amounts referred to in section 13’?  Mr Bassett said it referred to amounts contained within the regulations.  Adv de Lange asked if it was strictly a salary issue?  However, he left the matter there saying the Committee would be able to look at this again with the Judicial Officers Amendment Bill [B72-2001]. 

Adv de Lange said there was some confustion in sub-clause (5) in that the word ‘any’ should be replaced to read ‘the annual.’ 

There were no additional points. 

Clause 3
There were no further amendments to this clause. 

Clause 4
Adv de Lange suggested that sub-clause (4)(a) should be altered to read ‘held office as such immediately before.’  The Committee concurred. 

Clause 5
Adv de Lange asked if the Committee felt the reference to ‘that salary’ in sub-clause (2)(c) was clear enough?  The Committee and Mr Bassett were content that it was.
 
Adv de Lange said he had also spoken to the Minister regarding the problem that, potentially, the widower or widow of a judge who died within the first year of her or his appointment could receive a full salary, whilst someone who died after 12 years active service would only get 80 percent.  As this Bill was not creating the problem, the matter would be taken up again in the new year when the Committee looked at judges’ pensions again.  Accordingly, the Minister was happy that the provisions of this Bill should stay as the Committee proposed. 

Clause 6
There were no further amendments to this clause. 

Clause 7
Adv de Lange asked why sub-clause (3) referred to ‘salary’?  He wondered if this was the correct word. 

Mr Bassett said salary was the appropriate phrase.  Adv de Lange then asked why the other provisions in clause 7 related to ‘remuneration’?  Mr Bassett explained that the salary referred to was the one detailed in clause 5. 

Clause 8
There were no new suggestions.

Clause 9
Adv de Lange brought to the Committee’s attention the terms of sub-clause (1)(b), which now expressly referred back to clause 5 as they wished.

Clause 10
There were no new suggestions.

Clause 11
Mr Bassett questioned whether the phrase ‘other than in terms of this section’ was strictly necessary?  Adv de Lange said that whilst the clause had taken the ‘belts and braces’ approach to legal drafting, as they were creating new law it was not overly cautious.  Mr Bassett said he still found it unnecessary, so the Committee decided to delete the words. 

Dr Delport (DP) asked why the clause said ‘contemplated in terms of this Act’ and not simply ‘contemplated’?  The State Law Advisor agreed that the term was unnecessary and it was deleted. 

Clause 12
The Committee noted that the clause heading read rather strangely, but they decided to leave it unamended. 

Clauses 13 - 15
There were no new suggestions.

Clause 16
In addition to the previously decided upon changes (relating to the differing Regulations in place in the former Bophuthatswana and the Transkei) which the Committee were satisfied with, Adv de Lange further asked what was the position if the three sets of Regulations were inconsistent with each other?  Mr Rudman, a drafter from the Department of Justice, said that the Republic of South African regulations did not apply to all judges (no judge was subject to an overlapping regulation) so there was no immediate problem.  However, to rectify any potential inconsistency new Regulations could be issued covering the entire country.  Adv de Lange said he was very concerned that measures attempting to bring harmony to judges’ remuneration and employment conditions may be hampered through the regulations. 

Dr Delport (DP) suggested an amendment could be made to the clause as a temporary measure, until the regulations were amended.  He suggested that an alteration to sub-clause (1)(c) adding the words ‘with respect to those judges to which the regulations applied immediately prior to the Commencement of this Act’ between “force” and “until” would resolve the problem. 

Adv de Lange agreed and explained to the drafters that the nature of legislation was such that, if the parent Act of a Regulation was rationalised, this must impact on the regulation flowing from it.  It was not possible for Parliament to remove aspects from a parent Act yet leave in force the delegated legislation stemming from it.  He told Mr Bassett that whilst Dr Delport’s suggestion would help them in the meantime, the Department would be given three months to amend the regulations. 

Ms Magazi (ANC) asked why the clause said ‘the regulations…which are not inconsistent with this Act’?  Adv de Lange explained that it was to invalidate any regulations in place which did not conform with the terms of this Bill. 

Sub-clause (2)(b)(ii), which referred to the situation prior to the coming into force of the Interim Constitution, had already been subject to debate by the Committee and they had asked already for the words ‘of a High Court or Supreme Court’ to be altered to ‘in any court.’  This had not been done, so the Committee amended the sub-clause accordingly.  Dr Delport (DP) queried whether the term, which was repeated in (c) and (d), required amendment there also?  Adv de Lange said this was not necessary as those sub-clauses, unlike sub-clause (b), could relate to periods before or after the coming into force of the Interim Constitution. 

Clause 17
There were no new suggestions.

Clause 18
The Department of Justice had asked if the commencement of clause 16(4) of the Bill could be altered to allow for them to put the necessary funding in place to provide for its terms.  Clause 18 was amended accordingly.  The existing text was altered to become sub-clause (i) and a new sub-clause (ii) was added.  The clause then read

(i)         …; and
section 16(4) comes into operation on a date fixed by the President by Proclamation in the Gazette.

Schedule
There were no new suggestions.

Memorandum on the Objects
The Committee deliberated on the draft and made certain alterations.
 
Adv de Lange said the only slight nagging issue he had with the Bill was a purely structural criticism.  He would have rather had the terms relating to the Constitutional Court judges detailed first, followed by the other judges, but as the Committee were restrained by the structure of the original Act, this was not feasible.  He said that Mr Rudman had gone to try and clarify whether there was any problem over the situation with regard to widows.  The Department were of the opinion that the Bill only provided for those widows or widowers in receipt of a pension when the Act came into force (there being no provision for those who were widowed from the date of the Act’s commencement).  However, Adv de Lange decided that the Committee should vote on the Bill regardless as the issue could be re-opened if need be. 

The Bill was unanimously passed with amendments.

Committee Report on the Judges’ Remuneration and Conditions of Employment Bill
Adv de Lange read through the Report and the Committee made certain amendments. The most important was that Mr Bassett was asked to draft a new paragraph (8) relating to clause 16(1) to include an instruction to the Department of Justice to draft replacement Regulations to consolidate the existing three sets into one. 

The Committee unanimously passed the Report. 

The drafters were told by Adv de Lange that if there was any further confusion regarding the terms of the Bill they must resolve it today.  Further alterations could be made to the Bill at the NCOP stage, but all such changes were to be run past Adv de Lange first. 

Criminal Procedure Second Amendment Bill
The Committee read through the final version of the Bill in order to check it prior to voting on it.

Ms Camerer (NNP) noted an alteration to 105A (9)(c) in Clause 2  had been carried out in her absence.  She queried the acceptability of ‘convict’ rather than ‘find guilty’, her inference being that a finding of guilt had to precipitate a conviction.  However, she said that as the full sub-clause read ‘convict the accused of the offence charged’ her unease was probably misplaced. 

Mr Labuschagne, the drafter, said that the National Director of Public Prosecutions was unhappy with the word ‘directives’ being used throughout 105A (11) in Clause 2 as the Public Prosecutors Department liked to keep their directives confidential and this Bill could lead to confusion.  Adv de Lange said that this was not a valid criticism.  The Public Prosecutors would simply need to categorise some directives ‘private and confidential’ and some not. 

The State Law Advisor advised the Committee that there was disquiet over the proposal to deny the opportunity to enter into a ‘plea bargain agreement’ to an accused without legal representation. 

Adv de Lange said he could think of no possible justification for the State Law Advisors to take such a stance and spelt out cogently the Committee’s reasoning.  He pointed out that under no circumstances could it be argued that an unrepresented accused, who was potentially illiterate, had anything approaching parity of a negotiating position with the Prosecutor.  Further, as everyone who faced the potential of a prison sentence if convicted had the right to free legal representation, those individual’s whose cases would genuinely fill the courts, were targetted.  The aim of the Bill was not to weed out, for example, driving offences, but cases which would involve a lot of court time and personnel.  Further, the provisions of the Act ensured that no one could claim at a later date that they were hoodwinked by the Prosecutor, or did not understand the terms of the agreement, and so take up the very court space on an appeal point which the agreement had sought to free.  The State Law Advisor said he was being briefed by Mr Daniels, Chief State Law Advisor, at 1pm.  He would report back to the Committee during the afternoon session. 

Committee Report on the Criminal Procedure Second Amendment Bill
Adv de Lange read through the Report and the Committee made certain alterations to it in light of the amendments to the Bill.  The Committee also added: This report must be forwarded immediately to the National Director of Public Prosecutions for his attention.

Afternoon session:
State Law Advisor input on Criminal Procedure Second Amendment Bill
The State Law Advisors appeared before the Committee to discuss their reservations with Criminal Procedure Second Amendment Bill as they felt that it was not proper to distinguish between represented and unrepresented accused. They believed that unrepresented accused should also be able to enter into negotiations relating to sentence, and finally also be able to conclude a plea or sentence agreement. In the face of the argument that this mechanism was open to abuse, they countered that the magistrate or the court would be the final custodian of the accused’s rights, making sure that the accused had not been unfairly treated. The magistrate would be charged with the duty of making certain that the accused’s rights had not been violated and that all the elements of the crime were indeed admitted to.

Adv de Lange reminded the law advisors that it was their duty to advise the Committee on matters of law, matters of hard legal fact. It was not their place to express opinion on any matter. Instead their sole duty was to tell the Committee when proposed legislation goes against the grain of existing legislation or constitutional principle. He reiterated that the law advisors were not there to give their own views but to advise on legal fact. He asked the law advisors whether their statement was a statement of fact or the expression of the their own feeling.

The law advisors told the Committee that the statement was an opinion.

Adv de Lange reminded them that it was the Committee members who were paid to legislate. It was their function alone, as the legislature, to make policy decisions such as that, to make normative judgements. He told the law advisors that if the distinction was unconstitutional, then it would be completely different. However, it was not for the law advisors to comment on such a matter.

Ms S Camerer (NNP) asked the law advisors if they had been present when Adv de Lange had shared the reasons why the distinction should be made. She contiuned that the reason for the distinction was that the process was extremely open to abuse of the accused’s rights. She asked what their view on this matter was.

The law advisors reiterated that it would be the magistrate that would see that there was no abuse of the accused’s rights.

Adv de Lange interjected and said that besides the principle there would be practical problems. This would stem from the fact that most accused would not even know about the Bill. In this situation, where all accused could bargain, it would be the duty of the public prosecutor to ask all accused if they wanted to enter into sentence negotiations. In such a situation there was a lot the accused would need to know. How would one educate an accused enough to be able to negotiate on his sentence? How do you teach them a range of legal principles in a minute or two? He told the law advisors that there would be a number of practical problems on both sides. Even the Office of the National Director of Public Prosecutions had come before the Committee to ask for a staggered implementation of the Act. This was because of a feeling that they did not have the capacity to implement it nationally all at once.

Adv de Lange then signed the motion of desirability on the Bill and the Bill was accepted with amendments.

Extradition Treaty between Republic of South Africa and Kingdom of Lesotho
Mr Allers (Department of Justice) explained that at the end of 1996 Parliament had approved this extradition Treaty. The Treaty before the Committee was a streamlined version of the very same Treaty. The Treaty had been changed to instead provide in a broader sense what were extraditable offences.

Adv de Lange asked if there was anything in this Treaty that was different or out of the ordinary as far as extradition treaties went. Mr Allers said that there were no such variations and that the Treaty was a standard extradition Treaty.

Ms F I Chohan-Kota (ANC) said that she had recently been to Mozambique where she had learnt from the High Commissioner that there was no extradition treaty between Mozambique and South Africa. In light if this, she asked who dealt with these matters and proactively researched which countries South Africa needed to enter into such agreements with.

Mr Allers replied that there was something presently under consideration to deal with the situation between South Africa and Mozambique. Other than this, extradition treaties were usually achieved or negotiated through diplomatic processes.

Ms Chohan-Kota said she had asked her question in light of the fact that in the Mozambique High Commission there was a whole police force who dealt exclusively with cross-border crime.

Adv de Lange felt it would be a good idea to compile a list detailing with which countries South Africa presently had such treaties, whom they were currently undergoing negotiations with and who South Africa should have such an agreement with. He added that if one was serious about the fight against crime then arrangements such as these were of necessity.

None of the members objected to South Africa’s accession to this Treaty.

Treaty on Mutual Legal Assistance in Criminal Matters between RSA and Kingdom of Lesotho;
Statute of the Hague Conference on Private International Law
The other two treaties received a relatively sparse consideration. Adv de Lange simply asked if there were any financial implications. Mr Allers said that there was a R120 000 fee payable in relation to the Statue of the Hague Conference on Private International Law and this amount had already been provisionally budgeted for.

Adv de Lange noted that the Treaty on Mutual Legal Assistance in Criminal Matters between the Republic of South Africa and the Kingdom of Lesotho was just as important as the extradition Treaty, especially if one professed to be serious about the fight against crime.

All three of these international agreements were agreed to.

This meeting being one on the last Committee meetings for the year, and having passed yet another Bill, Adv de Lange took time to thank the Committee members. He commended all for their hard work and perseverance and gave thanks to those who had given administrative assistance.

The meeting was adjourned.

Appendix 1:
Report of the Portfolio Committee on Justice and Constitutional Development on the Criminal Procedure Second Amendment Bill [B 45 - 2001] (National Assembly - sec 75), dated 30 October 2001:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Criminal Procedure Second Amendment Bill [B 45 - 2001] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 45A - 2001], and endorses the classification of the Bill as a section 75 Bill.

The Committee wishes to report further, as follows:

1. In terms of the new section 105A(11), which is inserted in the Criminal Procedure Act, 1977 (Act No. 51 of 1977), by clause 2 of the Bill, the National Director of Public Prosecutions is required to issue directives regarding all matters which are reasonably necessary or expedient to be prescribed in order to achieve the objects of that section. However, in terms of clause 3 the Bill will commence on the date of publication in the . Hence some time will elapse between the commencement of the Bill and the issuing of the directives. As the provisions of the new section 105A will have limited application without the required directives being in place and in order to avoid any practical problems with the application of those provisions until such time as the directives have been issued, the Committee requests the National Director of Public Prosecutions to -

(a) authorise only senior members of the prosecuting authority, for example the Directors of Public Prosecutions, in terms of the new section 105A(1) to apply the provisions of that section during the period concerned; and

(b) give his immediate attention to the issuing of the required directives, in particular those dealing with offences referred to in the Schedule to the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), or any other offence for which a minimum penalty is prescribed in the law creating that offence.

2. The Committee further wishes to draw the attention of the National Director of Public Prosecutions to the provisions of -

(a) the new section 105A(11)(b)(iv), requiring the prosecuting authority to keep comprehensive records and statistics relating to the implementation and application of that section; and

(b) the new section 105A(12), in terms of which he is required to, at least once every year, submit those records and statistics to Parliament.

The Committee further requests him to ensure that those provisions are complied with diligently so as to enable the Committee and the Department of Justice and Constitutional Development to evaluate the efficiency of the new provisions and to amend those provisions to enhance their efficiency, if necessary.

3. This Report must be forwarded immediately to the National Director of Public Prosecutions for his attention.

Report to be considered.

Appendix 2:
MEMORANDUM  ON THE OBJECTS OF THE JUDGES' REMUNERATION AND CONDITIONS OF EMPLOYMENT BILL, 2001

1. After the Department of Justice and Constitutional Development had briefed the Portfolio Committee on Justice and Constitutional Development on the Judicial Officers Amendment Bill [B72-2001], the Committee considered the scope of all the issues dealt with in the Bill, most of which involve comprehensive and fundamental changes to existing laws. It also took into account the limited time remaining to deal with issues of this nature during the 2001 session of Parliament which is drawing to a close.  Lastly, it pointed out that the Judicial Officers Amendment Bill was only submitted to Parliament after 17 August 2001, the deadline for the submission of draft legislation to Parliament for consideration during the 2Q01 session of Parliament. In the light of the above the Committee was of the opinion that it should present its own Bill in terms of the Rules of Parliament in order to deal with only those urgent matters contained in the Judicial Officers Amendment Bill which cannot be held in abeyance until the 2002 session of Parliament.

2. The Committee was consequently of the view that it would be expedient to deal with those issues in the Judicial Officers Amendment Bill which emanate from the Republic of South Africa Constitution Amendment Bill, 2001, which relate to courts and the administration of justice, as contemplated in Chapter 8 of the Constitution, namely the Constitutional amendments which relate to-
(a)  the offices of Chief Justice of South Africa and Deputy Chief Justice and President and Deputy President of the Supreme Court of Appeal; and
(b)  the terms of office of Constitutional Court judges.

3. While confining itself to the issues referred to in paragraph 2, which entail amendments to virtually every section of the Judges' Remuneration arid Conditions of Employment Act, 1989 (Act No. 88 of 1989), the Committee came to the conclusion That, rather than to present cumbersome and cluttered amending legislation, it would he more appropriate to recommend an entirely new statute to regulate the remuneration and conditions of employment of judges, which would, at the same time, rationalise the laws regulating his important aspect of the administration of justice; hence the inclusion of provisions in the Bill which purport to make the draft legislation applicable throughout the Republic arid which envisage the repeal of the Judges' Remuneration and Conditions of Employment Act, 1989, and the corresponding legislation in the former homelands, which is still applicable in those geographical areas.

4. The Bill presented by the Committee consequently Iargely encapsulates the principles contained in the Judges’ Remuneration and Conditions of Employment Act, 1998; the main differences between the existing and the proposed legislation are to be found in the provisions which deal with the offices of Chief Justice of South Africa and Deputy Chief Justice and President and Deputy President of the Supreme Court of Appeal and the terms of office of Constitutional Court judges, the latter category, particularly, requiring comprehensive adaptations to the existing legislation. During the course of revisiting the provisions of the existing Judges' Remuneration and Conditions of Employment Act, 1989, to bring them into line with the Constitutional amendments, the Committee has also suggested amendments of a technical nature in an effort to streamline and improve the legislation as a whole.

5. As indicated above, the Committee intends finalising the issues not dealt with in the Judicial Officers Amendment Bill during the 2002 session of Parliament when those important issues and principles can be debated without any time constraints.

6.  The main objects of the Bill, which give rise to the amendments in question are the following:

(i) To make provision (or the head of the Constitutional Court to become the Chief Justice of South Africa and for the head of the Supreme Court of Appeal to become President of the Supreme Court of Appeal, in line with proposed Constitutional amendments.

(ii) To make provision for the offices of Deputy Chief Justice and Deputy president Of the Supreme Court of Appeal in the Judges' Remuneration and Conditions of Employment Act, 1 989, which are reflected in the Constitution.

(iii) To put Constitutional Court judges on similar footing as their colleagues in the Supreme Court of Appeal and the High Courts in respect of benefits accruing to them in terms of the legislation.

(iv) To make the legislation regulating the remuneration and conditions of employment of judges applicable throughout South Africa and to repeal the corresponding legislation in the former homelands.

7. DEPARTMENTS/BODIES/PERSONS CONSULTED

The Bill was made available to the Acting Chief Justice and the President of the Constitutional Court.

8. IMPLICATIONS FOR PROVINCES

None.

9. FINANCIAL IMPLICATIONS FOR STATE

None

10. PARLIAMENTARY PROCEDURE

The Committee, the State Law Advisers and the Department of Justice and Constitutional Development are of the opinion that this Bill must be dealt with in accordance with section 75 of the
Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.

Appendix 3:
JUDGES' REMUNERATION AND CONDITIONS OF EMPLOYMENT BILL

BILL

To provide for the remuneration and conditions of employment of judges of the Constitutional Court, the Supreme Court of Appeal and the High Courts; and for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

CHAPTER 1

DEFINITIONS
 (s 1)


Definitions and application of Act
1.         (1)        In this Act, unless the context indicates otherwise‑
'active service' means any service performed as a Constitutional Court judge or judge in a permanent capacity, irrespective of whether or not such service was performed prior to or after the date of commencement of this Act, and includes any continuous period -
(a)        of longer than 29 days of such service in an acting capacity prior to assuming office as a Constitutional Court judge or judge in a permanent capacity if such service was performed before the date of commencement of this Act;  and
(b)        of such service in an acting capacity prior to assuming office as a Constitutional Court judge or judge in a permanent capacity if such service was performed after the date of commencement of this Act;
‘annual salary’ means the annual salary and the allowance payable to a Constitutional Court judge and judge in terms of section 2;
'Constitution' means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
‘Constitutional Court judge' means any person holding the office of -
(a)        Chief Justice of South Africa;
(b)        Deputy Chief Justice;  or
(c)        judge of the Constitutional Court,
and includes  any person who, since 7 June 1994, held, the office of
-
(i)         President of the Constitutional Court;
(ii)         Deputy President of the Constitutional Court; or
(iii)        judge of the Constitutional Court;
'fixed date' is 1 April 1989 ;
'judge' means any person holding the office of -,
(a)        President or Deputy President of the Supreme Court of Appeal;
(b)        judge of the Supreme Court of Appeal;
(c)        Judge President or Deputy Judge President of any High Court;  or
(d)        judge of any High Court,
and includes any person who, at or since the fixed date, held the office of-
(i)         Chief Justice of South Africa or Deputy Chief Justice;
(ii)         judge of the Appellate Division of the Supreme Court of South Africa or of the Supreme Court of Appeal;

(iii)        Judge President or Deputy Judge President of any provincial or local division of the Supreme Court of South Africa or of any High Court;
(iv)        judge of any provincial or local division of the Supreme Court of South Africa or of any High Court; or
(v)        judge of any court of a homeland referred to in Item 16 of Schedule 6 to the Constitution, read with Item 1 thereof;
'Minister' means the Cabinet member responsible for the administration of justice;
'salary' means the salary payable to a Constitutional Court judge or judge in terms of section 5;
'service' means -
(a)        service as a  judge of the Supreme Court of Appeal or a High Court as contemplated in the Supreme Court Act, 1959 (Act No. 59 of 1959), in the same or a higher office held by the judge concerned on discharge from active service, or, with the approval of the  judge concerned, service in a lower office;
(b)        service as a chairperson or a member of a commission as contemplated in the Commissions Act, 1947 (Act No. 8 of 1947);
(c)        service as a chairperson or a member of a body or institution established by or under any law;  or
(d)        any other service which the Minister may request him or her to perform.
(2)        This Act applies to all Constitutional Court judges and judges -
(a)        to whom the Judges’ Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989) applied; and
(b)        to whom corresponding legislation in any homeland, as defined in Item 1 of Schedule 6 to the Constitution, which, immediately before the date of commencement of this Act, had not  been repealed,  applied.

CHAPTER 2
REMUNERATION AND CONDITIONS OF EMPLOYMENT OF CONSTITUTIONAL COURT JUDGES AND JUDGES
(ss 2‑11)

Annual salary of Constitutional Court judges and judges
2.         (1)        Any person who holds office as a Constitutional Court judge or as a judge, whether in an acting or permanent capacity, shall in respect thereof, in addition to the amounts referred to in section 13 and an allowance at the rate of R3 500 per annum, be paid an annual salary at a rate determined by the President by proclamation in the Gazette.
(2)        A proclamation in terms of subsection (1) may be issued with effect from a date which may not be earlier than one year prior to the date of the proclamation.
(3)        (a)        A copy of a proclamation issued under subsection (1) shall be submitted to Parliament within 14 days after publication thereof.
(b)        If Parliament rejects such proclamation or any provision thereof, such proclamation or provision shall thereafter cease to be of force and effect to the extent to which it was so rejected but without prejudice to the validity of anything done in terms of such proclamation up to the date upon which it so ceased to be of force and effect, or to any right, privilege, obligation or liability acquired, accrued or incurred as at the said date under and by virtue of such proclamation.
(4)        The allowance payable in terms of subsection (1) shall not be taxable, unless Parliament expressly provides otherwise.
(5)        The amount of the annual salary and allowance payable in terms of subsection (1), shall be paid as a direct charge against the National Revenue Fund.
(6)        No Constitutional Court judge may, without the consent of the Minister, accept, hold or perform any other office of profit or receive in respect of any service any fees, emoluments or other remuneration apart from his or her salary and any amount which may be payable to him or her in his or her capacity as a Constitutional Court judge.

Discharge of Constitutional Court judges and judges from active service
3.         (1)        A judge who holds office in a permanent capacity‑
(a)        shall, subject to the provisions of section 4, be discharged from active service on the date on which he or she attains the age of 70 years, if he or she has on that date completed a period of active service of not less than 10 years, or, if he or she has on that date not yet completed a period of 10 years' active service, on the date immediately following the day on which he or she completes a period of 10 years' active service;
(b)        who has already attained the age of 65 years and has performed active service for a period of 15 years, and who informs the Minister in writing that he or she no longer wishes to perform active service, shall be discharged by the President from active service;
(c)        may at any time be discharged by the President from active service if he or she becomes afflicted with a permanent infirmity of mind or body which renders him or her incapable of performing his or her official duties;  or
(d)        may at any time on his or her  request and with the approval of the President be discharged from active service if there is any reason which the President deems sufficient.
(2)        A Constitutional Court judge who holds office in terms of section 176(1) of the Constitution -
(a)        must, subject to the provisions of section 4(2) or (3), be discharged from active service as a Constitutional Court judge, on the date on which he or she -
(i)         attains the age of 70 years;  or
(ii)         has completed a 12 year term of office as a Constitutional Court judge,
whichever occurs first;
(b)        may at any time be discharged by the President from active service if he or she becomes afflicted with a permanent infirmity of mind or body which renders him or her incapable of performing his or her official duties;  or
(c)        may at any time on his or her  request and with the approval of the President be discharged from active service if there is any reason which the President deems sufficient.           

Continuation of active service by Constitutional Court judges and judges
4.         (1)        A judge who on attaining the age of 70 years has not yet completed 15 years' active service, may continue to perform active service to the date on which he or she completes a period of 15 years' active service or attains the age of 75 years, whichever occurs first, whereupon he or she must be discharged from active service.
(2)        A Constitutional Court judge whose 12 year term of office as a Constitutional Court  judge expires before he or she has completed 15 years' active service must, subject to subsection (3), continue to perform active service as a Constitutional Court judge to the date on which he or she completes a period of 15 years' active service, whereupon he or she must  be discharged from active service.
(3)        A Constitutional Court judge who, on attaining the age of 70 years, has not yet completed 15 years' active service, must continue to perform active service as a Constitutional Court judge to the date on which he or she completes a period of 15 years' active service or attains the age of 75 years, whichever occurs first, whereupon he or she must be discharged from active service.
(4)        (a)        A Constitutional Court judge who is discharged from active service in terms of section 3(2) or subsection (2) or (3) and who is also a judge contemplated in section 174(5) of the Constitution, may continue to perform active service as a judge in the court in which he or she held office as such immediately before he or she was appointed as a  Constitutional Court judge if-
(i)         he or she indicates his or her willingness to do so in writing to the President three months before he or she is so discharged from active service; and
(ii)         he or she still qualifies to hold office as such a judge in a permanent capacity in terms of section 3(1) or 4(1) of this Act.
(b)        Nothing in this Act precludes a Constitutional Court judge -
(i)         who is discharged from active service in terms of section 3(2) or subsection (2) or (3);  and
(ii)         who is not a judge contemplated in section 174(5) of the Constitution,
from being appointed to the office of judge in a court other than the Constitutional Court by the President on the advice of the Judicial Service Commission as contemplated in the Constitution, if he or she still qualifies to hold office as such a judge in a permanent capacity in terms of section 3(1) or 4(1) of this Act.
(c)        The holding of office by a judge referred to in paragraph (a) or (b) -
(i)         interrupts that judge's discharge from active service in terms of section 3(2) or subsection (2) or (3);  and
(ii)         suspends any salary payable in terms of section 5 to that judge pursuant to such discharge from active service.
(d)        The holding of office by a judge referred to in paragraph (a) or (b), entitles such a judge to an annual salary which-
(i)         is payable in terms of section 2;  and
(ii)         may not be less than the annual salary applicable to the highest office held as a Constitutional Court judge or a judge.

Salary payable to Constitutional Court judges and judges after discharge from active service
5.         (1)        Subject to subsection (2), a Constitutional Court judge or a judge who on or after the fixed date was or is discharged from active service in terms of section 3 or 4 shall be paid a salary in accordance with the formula‑
in which formula the factor‑
(a)        A represents the annual salary applicable to the highest office held by the Constitutional Court judge or judge concerned in a permanent capacity during the period of his or her active service: Provided that, subject to section 11(3)(a) and (5)(a), the factor 'A' in the said formula must be adjusted whenever the annual salary applicable to the highest office held by the Constitutional Court judge or judge concerned during the period of his or her active service, is increased;
(b)        B represents 15; and
(c)        C represents the period in years of active service of such Constitutional Court judge or judge.
(2)        The aggregate of the salary payable in terms of subsection (1) to a Constitutional Court judge or judge who was or is discharged from active service -
(a)        in terms of section 3 (1)(a), (c) or (d), 3(2) or 4(1), (2) or (3) shall not be less than 40 per cent of his or her highest annual salary during the period of his or her active service and shall not exceed such salary;
(b)        in terms of section 3(1) or 3(2) and has performed active service for a period of not less than 20 years, shall be equivalent to the annual salary applicable to the highest office held by him or her in a permanent capacity during his or her period of active service;
(c)        in terms of section 3 (1)(b), shall, subject to paragraph (b), be 80 per cent of his or her highest annual salary during the period of his or her active service, plus 2 per cent of that salary for every year of active service which he or she performs after attaining the age of 65 years;
(d)        in terms of section 3 (1)(c) or (d) or 3(2)(b) or (c) before he or she attains the age of 65 years, shall, subject to paragraph (b), be not more than 80 per cent of his or her highest annual salary during the period of his or her active service.
(3)        For the purposes of subsection (1) the period of active service in any particular office shall be calculated by the year and the month, and fractions of a month shall-
(a)        in respect of any active service performed before the date of commencement of this Act, be disregarded;  and
(b)        in respect of any active service performed after the date of commencement of this Act be taken into account.
(4)        If a Constitutional Court judge or  a  judge to whom a salary is payable in terms of this section dies, the payment of the salary shall cease with effect from the first day of the month following the month in which he or she died.

Gratuity payable to Constitutional Court judges and judges after discharge from active service
6.         (1)        Subject to the provisions of subsections (2), (3) and (4), any Constitutional Court judge or judge who on or after the fixed date  was or is discharged from active service in terms of section 3 or 4, shall, in addition to any salary payable to him or her in terms of section 5, be paid a gratuity which shall in respect of every office held by him or her in a permanent capacity during his or her active service be calculated in accordance with the formula‑
in which formula the factor‑
(a)        D represents the annual  salary which at the time of the discharge of such Constitutional Court judge or judge from active service was applicable to the office concerned;
(b)        E represents the period in years of active service, but not exceeding 20 years, of such a Constitutional Court judge or judge in the office concerned.
(2)        After the completion of 15 years' active service a Constitutional Court judge or judge shall once be entitled, if he or she so requests, to be paid the gratuity (or any part thereof) which has until the date of the request accrued in accordance with the formula in subsection (1).
(3)        After the completion of 20 years' active service a Constitutional Court judge or judge shall once be entitled, if he or she so requests, to be paid the gratuity (or any portion thereof) which has until that date accrued in accordance with the formula in subsection (1), or the balance available after the exercise of the power in terms of subsection (2).
(4)        A judge referred to in section 4(1) shall once be entitled, when he or she attains the age of 70 years and has completed not less than 10 years' active service, to be paid, if he or she so requests, the gratuity (or any portion thereof) which has until the date of that request accrued in accordance with the formula in subsection (1).
(5)        The total amount of any gratuity payable in terms of this section to a Constitutional Court judge or  judge shall not exceed three times his or her highest annual salary during the period of his or her active service.
(6)        For the purposes of this section the period of active service shall be calculated by the year and the month, and fractions of a month shall be taken into account.
(7)        Notwithstanding anything to the contrary contained in any other law, the gratuity payable to Constitutional Court judges or judges under this section shall not be taxable.

Performance of service by Constitutional Court judges and judges  discharged from active service
7.         (1)        (a)        A Constitutional Court judge or judge who has been discharged from active service, except a Constitutional Court judge or judge who has been discharged in terms of section 3(1)(b), (c) or (d) or (2)(b) or (c), who ‑
(i)         has not attained the age of 75 years must, subject to paragraph (c), be available to perform service until he or she attains the age of 75 years, for a period or periods which, in the aggregate, amount to three months a year:  Provided that such a Constitutional Court judge or judge may voluntarily perform more than three months' service a year, if his or her services are so requested; or
(ii)         has already attained the age of 75 years, may voluntarily perform further service, if his or her services are so requested-
if that Constitutional Court judge's or judge's mental and physical health enable him or her to perform such service.
(b)        Service contemplated in paragraph (a) of the definition of “service” in section 1 may only be performed if -
(i)         after consultation with the Judicial Service Commission, such service is requested by the Chief Justice, President of the Supreme Court of Appeal or the judge president in whose area of jurisdiction the Constitutional Court judge or judge resides or of the court to which he or she was attached when discharged from active service, or with his or her consent, any other judge president, in consultation with the Chief Justice or the said judge president, as the case may be;  and
(ii)         the Minister so approves.
(c)        Service as mentioned in paragraph (b), (c) or (d) of the definition of “service” in section 1 may be performed only with the consent of the Constitutional Court judge or judge concerned.
(2)        (a)        A Constitutional Court judge or judge who performs service in terms of subsection (1), as contemplated in paragraph (a) of the definition of "service" in section 1, shall, subject to paragraph (b)(ii), monthly be paid an additional amount in remuneration which is equal to the amount which at that time is payable to the holder of the office which he or she holds for that period.
(b)        A Constitutional Court judge or judge who performs service in terms of subsection (1) as contemplated in -
(i)         paragraphs (b) to (d) of the definition of "service" in section 1 ;  and
(ii)         the proviso to subsection(1)(a)(i) or in subsection(1)(a)(ii), read with paragraph (a) of the definition of “service” in section 1,
shall monthly be paid such remuneration as the President may determine.
(3)        The salary of a Constitutional Court judge or judge who contrary to subsection (1)(a)(i) fails to perform the minimum period of service referred to in that subsection if so requested, shall, for every full year during which he or she so fails, be reduced by two per cent: Provided that such reduction shall, in the aggregate, not amount to more than 10 per cent of such salary.
(4)        The registrar of the Supreme Court of Appeal or a High Court where a Constitutional Court judge or judge performs service in terms of subsection (1), shall notify the Director‑General: Justice and Constitutional Development immediately of the commencement and duration of the service.
(5)        The Director‑General: Justice and Constitutional Development shall keep a register of all service performed by Constitutional Court judges or judges in terms of subsection (1).

Performance of service as Chief Justice by Chief Justice or as President by President of Supreme Court of Appeal in certain circumstances
8.
        (a)        A Chief Justice  who becomes eligible for discharge from active service in terms of section 3(2)(a) or 4(2) or (3), may, at the request of the President, from the date on which he or she becomes so eligible for discharge from active service, continue to perform active service as Chief Justice of South Africa for a period determined by the President, which shall not extend beyond the date on which such Chief Justice attains the age of 75 years.
(b)        A President of the Supreme Court of Appeal  who becomes eligible for discharge from active service in terms of section 3(1)(a) or 4(1), may, at the request of the President, from the date on which he or she becomes so eligible for discharge from active service, continue to perform active service as President of the Supreme Court of Appeal for a period determined by the President, which may not extend beyond the date on which such President  of the Supreme Court of Appeal attains the age of 75 years.

Amount payable to surviving spouse of Constitutional Court judge and judge

9.         (1)        The surviving spouse of a Constitutional Court judge or judge who on or after the fixed date was or is discharged from active service in terms of section 3 or 4 or who died or dies while performing active service, shall be paid with effect from the first day of the month immediately succeeding the month in which he or she dies an amount‑
(a)        in the case of a surviving spouse of a Constitutional Court judge or judge who was so discharged from active service, equal to two thirds of the salary which was in terms of section 5 payable to that Constitutional Court judge or judge;  or
(b)        in the case of a surviving spouse of a Constitutional Court judge or judge who died while performing active service as a Constitutional Court judge or judge, equal to two thirds of the amount to which that Constitutional Court judge or judge would have been entitled in terms of section 5 if he or she was discharged from active service in terms of section 3 (1)(a) or (2)(a) on the date of his or her death.
(2)        The amount payable to the surviving spouse of a Constitutional Court  judge or judge in terms of subsection (1) shall be payable with effect from the first day of the month immediately succeeding the day on which he or she died, and shall be payable until the death of such spouse.

Gratuity payable to surviving spouse of Constitutional Court judge and judge
10.        If a gratuity referred to in section 6 would have been payable to a Constitutional Court judge or judge who died or dies on or after the fixed date had he or she not died but, on the date of his or her death, was discharged from active service in terms of section 3 or 4, there shall‑
(a)        if such Constitutional Court judge or judge is survived by a surviving spouse, be payable to such surviving spouse, in addition to any amount payable to that spouse in terms of section 9; or
(b)        if such Constitutional Court judge or judge is not survived by a spouse, be payable to the estate of such Constitutional Court judge or judge,
a gratuity which shall be equal to the amount of the gratuity which would have been so payable to such Constitutional Court judge or judge had he or she not died but was, on the date of his or her death, discharged from active service as aforesaid.

Resignation of Constitutional Court judges and judges from office in certain circumstances
11.        (1)        Any resignation by a Constitutional Court judge or judge which is not  contemplated in this Act precludes the payment of any benefits to such person in terms of this Act to which a Constitutional Court judge or judge would otherwise be entitled on discharge from active service.
(2)        A Constitutional Court judge who is a judge contemplated in section 174(5) of the Constitution or a judge who holds office in a permanent capacity, who already has attained the age of 65 years and has performed 15 years' active service may resign from office by notice in writing to the President that he or she no longer wishes to serve in the office of such judge, and shall vacate his or her office upon acceptance of such resignation.
(3)        A Constitutional Court judge or a judge referred to in subsection (2) shall be paid‑
(a)        a salary in accordance with the provisions of section 5: Provided that the proviso in section 5(1)(a) shall not apply in respect of him or her;
(b)        a gratuity in accordance with the formula set out in section 6(1).
(4)        A Constitutional Court judge who is not a judge contemplated in section 174(5) of the Constitution who has completed a 12 year term of office as a Constitutional Court judge or who has attained the age of 70 years, whichever occurs first, may resign from office by notice in writing to the President and must vacate his or her office upon acceptance by the President of such resignation.
(5)        A Constitutional Court judge referred to in subsection (4) must be paid-
(a)        a salary in accordance with the provisions of section 5: Provided that the proviso in section 5(1)(a) does not apply in respect of him or her;
(b)        a gratuity in accordance with the formula set out in section 6(1).
(6)        The provisions of section 6(7) apply with the necessary changes in respect of any gratuity payable in terms of this section.
(7)        The surviving spouse of a Constitutional Court judge or judge referred to in subsection (2) or (4) must, with effect from the first day of the month immediately succeeding the month in which he or she dies, be paid an amount equal to two thirds of the salary which was payable to that Constitutional Court judge or  judge in terms of subsection (3)(a) or  (5)(a), which amount shall be payable until the death of such spouse.   

CHAPTER 3
GENERAL PROVISIONS
(ss 12‑18)
Making available of motor vehicles to Constitutional Court judges and  judges

12.        A motor vehicle owned by the State may, on such conditions as the Minister may determine with the concurrence of the Minister of Transport, be made available to any person who holds office as a Constitutional Court judge or judge in a permanent or acting capacity, whether he or she performs active service or service, for use, in accordance with the conditions so determined, in the course of his or her official functions as well as for his or her private purposes.

Regulations

13.        (1)        The President may, after consultation by the Minister with the Chief Justice, the President of the Supreme Court of Appeal and the judges president of the respective High Courts, make regulations as to‑
(a)        arrangements regarding administrative recesses;
(b)        the periods for which and the circumstances under which and conditions upon which leave of absence may be granted to Constitutional Court judges or acting Constitutional Court judges , judges or acting judges;
(c)        the method of transport of such Constitutional Court judges or judges, and of Constitutional Court judges or judges on their discharge from active service or their vacation of office and of Constitutional Court judges or judges in the performance of service in terms of section 7, and of the members of their families and of the effects of Constitutional Court judges or judges or Constitutional Court judges or judges who have been discharged from active service or who have vacated their offices or Constitutional Court judges or judges who perform service in terms of section 7 or deceased Constitutional Court judges or judges, the amounts to be paid to Constitutional Court judges or judges or acting Constitutional Court judges or judges in connection with transport and subsistence, and the circumstances in which any such transport may be provided and any such amounts may be paid;
(d)        the amounts which may be paid to acting Constitutional Court judges or acting judges in connection with the maintenance by them of their practices as advocates or attorneys; and
(e)        the amounts payable to Constitutional Court judges and judges of the Supreme Court of Appeal in connection with their accommodation.
(2)        A regulation under subsection (1) may provide that an amount referred to in paragraph (c) or (d) of that subsection shall be calculated either in accordance with a scale or having regard to the expenses actually incurred in connection with the matter concerned.

Administration of Act
14.        The Director‑General: Justice and Constitutional Development shall, subject to the directions of the Minister, be charged with the general administration of this Act.

Method of payment of salaries, allowances and benefits
15.        Salaries, allowances and benefits payable in terms of sections 2, 5, 6,7, 9, 10 and 11 of this Act shall be paid as a direct charge against the National Revenue Fund and on such dates and in such manner as the Minister may from time to time determine.

Transitional provisions
16.        (1)        Notwithstanding the repeal of -
(a)        the Judges’ Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989);
(b)        the Judges’ Remuneration and Conditions of Employment Act, 1989 (Act No. 27 of 1989)(Bophuthatswana); and
(c)        Decree No. 19 (Judges’ Remuneration and Conditions of Service) of 1990 (Decree No. 19 of 1990) (Transkei),
by section 17 of this Act, the regulations which were made under the said Acts and were in force immediately before the date of commencement of this Act and which are not inconsistent with this Act, continue in force in respect of those judges to which the regulations applied immediately prior to the commencement of this Act until they are repealed, withdrawn or amended by regulations made under section 13 of this Act.
(2)        (a)        Any active service or service referred to in -
(i)         section 1 of the Judges' Remuneration and Conditions of Employment Act, 1989, (Act No. 27 of 1989) (Bophuthatswana);  or
(ii)         section 1 of Decree No. 19 (Judges' Remuneration and Conditions of Service) of 1990 (Decree No. 19 of 1990) (Transkei),
performed by a judge referred to in section 1 prior to the commencement of this Act is, for the purposes of this Act, deemed to be active service or service as contemplated in section 1(1) of this Act.                                               (b)        For the purposes of section 1(1) of this Act the word "service” in the definition of "active service" in section 1(1), preceding paragraph (a) thereof, is construed to include service performed by-
(i)         a judge of the Republic of South Africa, prior to the commencement of the Interim Constitution, who was seconded to serve as a judge in any court
of a homeland referred to in Item 16 of Schedule 6 to the Constitution, read with Item 1 thereof, while he or she was so seconded and so served;  or
(ii)         a judge in the former South West Africa prior to its independence and who, at the commencement of this Act holds office as  a judge of a High Court.
(c)        If a judge who has been seconded for active service or service as a judge
of a High Court or Supreme Court of a homeland as defined in Item 1 of Schedule 6 to the Constitution, dies or is discharged from active service while holding the office of chief justice of such a High Court or Supreme Court of such a homeland in a permanent capacity, his or her salary shall for the purposes of this Act be deemed to be that of a judge president of a High Court.
(d)        If a judge who has been seconded for service as a judge
of a High Court or Supreme Court of a homeland as defined in Item 1 of Schedule 6 to the Constitution, holds the office of chief justice of such a High Court or Supreme Court in a permanent or acting capacity, and if the amount of the salary and allowance payable to him or her in terms of section 2(1) is less than the amount of the salary and allowance payable in terms of that subsection to a judge president of a High Court, he or she shall, in addition to the salary and allowance payable to him or her as aforesaid, be paid an allowance equal to the difference between the amount of the salary and allowance payable to him or her as aforesaid and the amount of the salary and allowance payable as aforesaid to such a judge president.
(3)        Section 4 of Decree No. 19 (Judges' Remuneration and Conditions of Service) of 1990 (Decree No. 19 of 1990)(Transkei) continues to apply to any person to whom it applied at the date of commencement of this Act as if it had not been repealed.
(4)        (a)        Any person who retired as a judge in terms of the Judges'  Pensions Act, 1978 (Act No. 90 of 1978), and who, at the commencement of this Act receives a pension in terms of the said Judges' Pensions Act, 1978, is, from the date of commencement of this Act, entitled to an amount equal to two thirds of the salary payable to a judge contemplated in section 5(1) of this Act who held the same or a similar office to that of the retired judge on the date of the latter's retirement from office and who has the same number of years’ active service.
(b)        Any surviving spouse of a judge referred to in paragraph (a) who, at the commencement of this Act receives a pension in terms of the said Judges' Pensions Act, 1978, is, from the date of commencement of this Act entitled to a salary equal to one half of the salary of his or her deceased spouse contemplated in paragraph (a).

Repeal of laws
17.        The laws mentioned in the Schedule are hereby repealed to the extent set out in the third column thereof.

Short title and commencement

18.        (1)        This Act shall be called the Judges' Remuneration and Conditions of Employment Act,  2001.
(2)        Section 16(4) comes into operation on a date fixed by the President by proclamation in the Gazette.

SCHEDULE



No. and year of law


Title


Extent of repeal


Act 27 of 1989


Judges’ Remuneration and Conditions of Employment Act, 1989 (Bophuthatswana)


The whole


Act 88 of 1989


Judges’ Remuneration and Conditions of Employment Act, 1989


The whole


Decree 19 of 1990


Judges’ Remuneration and Conditions of Service, 1990 (Transkei)


The whole


Decree 43 of 1990


Supreme Court Decree, 1990 (Ciskei)


Section 5(1), (2) (3) and (4)


Act 139 of 1992


General Law Amendment Act, 1992


Sections 27 and 28


Act 91 of 1993


Judges’ Remuneration and Conditions of Employment Amendment Act, 1993


The whole


Act 129 of 1993


General Law Third Amendment Act, 1993


Section 71


Act 157 of 1993


General Law Fifth Amendment Act, 1993


Section 8


Act 204 of 1993


General Law Sixth Amendment Act, 1993


Section 15


Act 10 of 1994


Judges’ Remuneration and Conditions of Employment Amendment Act, 1994


The whole


Act 104 of 1996


Judicial Matters Amendment Act, 1996


Section 14


Act 77 of 1997


Judges’ Remuneration and Conditions of Employment Amendment Act, 1997


The whole


Appendix 4:
Report of the Portfolio Committee on Justice and Constitutional Development on the Judicial Officers Amendment Bill [B 72 - 2001] (National Assembly - sec 75), dated 30 October 2001:

A. The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Judicial Officers Amendment Bill [B 72 - 2001] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill -

1. recommends that, because of the delay with the introduction of the Bill in Parliament after the deadline of 17 August 2001, and pursuant time constraints, some of the provisions of the Bill be held in abeyance until the 2002 session of Parliament;

2. presents the Judges' Remuneration and Conditions of Employment Bill [B 83 - 2001] (National Assembly - sec 75); and

3. regards the classification of the Judges' Remuneration and Conditions of Employment Bill [B 83 - 2001] as a section 75 Bill.

B. The Committee wishes to report further, as follows:

1. The Committee -

(a) having been briefed by the Department of Justice and Constitutional Development on the Judicial Officers Amendment Bill;

(b) having received written submissions on the Bill and having held public hearings thereon;

(c) having considered the scope of all the issues dealt with in the Bill, most of which involve comprehensive and fundamental changes to existing laws;

(d) having pointed out that the Bill was only submitted to Parliament after 17 August 2001, the deadline for the submission of draft legislation to Parliament for consideration during the 2001 session of Parliament; and

(e) having taken into account the limited time remaining to deal with issues of this nature during this 2001 session of Parliament, which is drawing to a close,

was of the opinion that it should present its own Bill, in terms of the Rules of Parliament, in order to deal with only those urgent matters contained in the Judicial Officers Amendment Bill which cannot be held in abeyance until the 2002 session of Parliament.

2. The Committee was consequently of the view that it would be expedient to deal with those issues in the Judicial Officers Amendment Bill which emanate from the Republic of South Africa Constitution Amendment Bill, 2001, which relate to courts and the administration of justice, as contemplated in Chapter 8 of the Constitution, namely the constitutional amendments relating to -

(a) the offices of Chief Justice of South Africa and Deputy Chief Justice and President and Deputy President of the Supreme Court of Appeal; and

(b) the terms of office of Constitutional Court judges.

3. Whilst confining itself to the issues referred to in paragraph 2 above, which entail amendments to virtually every section of the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), the Committee came to the conclusion that, rather than to present cumbersome and cluttered amending legislation, it would be more appropriate to recommend an entirely new statute to regulate the remuneration and conditions of employment of Constitutional Court judges and judges. This would, at the same time, rationalise the laws regulating this important aspect of the administration of justice, hence the inclusion of provisions in the Bill which purport to make the legislation applicable throughout the Republic and which envisage the repeal of the Judges' Remuneration and Conditions of Employment Act, 1989, and the corresponding legislation in the former homelands, which is still applicable in those geographical areas.

4. The Judges' Remuneration and Conditions of Employment Bill, 2001, presented by the Committee, largely encapsulates the principles contained in the Judges' Remuneration and Conditions of Employment Act, 1989. The main differences between the existing legislation and the proposed legislation are to be found in the provisions which deal with the offices of Chief Justice of South Africa and Deputy Chief Justice and President and Deputy President of the Supreme Court of Appeal and the terms of office of Constitutional Court judges, the latter category in particular requiring comprehensive adaptations to the existing legislation.

During the course of revisiting the provisions of the existing Judges' Remuneration and Conditions of Employment Act, 1989, to bring them into line with the constitutional amendments, the Committee has also suggested amendments of a technical nature in an effort to streamline and improve the legislation as a whole.

5. As indicated in paragraph 1 above, the Committee intends finalising the issues not dealt with in the Judicial Officers Amendment Bill during the 2002 session of Parliament, when those important issues and principles can be debated without any time constraints.

6. During its deliberations on the Bill, the Committee's attention was drawn to the fact that the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), which regulates the remuneration and conditions of employment of judges, is silent on the position of a judge who is removed from office in terms of section 177 of the Constitution (impeachment). The question was raised whether a judge who is so removed from office should receive any benefits, and if so, what benefits.

The Committee consequently recommends that the Department of Justice and Constitutional Development be requested to investigate this aspect and to submit appropriate legislative proposals regarding the matter to the Committee at the beginning of the 2002 session of Parliament, when it considers those provisions of the Judicial Officers Amendment Bill which have been held in abeyance until then.

7. The Committee was also at pains to point out that -

(a) both the Constitution of the Republic of South Africa Amendment Bill, 2001, and the Judges' Remuneration and Conditions of Employment Bill, 2001, save for Clause 16(4) of the latter Bill, do not contain commencement provisions; and

(b) it is consequently imperative to ensure that the Constitution of the Republic of South Africa Amendment Bill, 2001, is enacted into law before the Judges' Remuneration and Conditions of Employment Bill, 2001, but not later than 20 November 2001, since, as mentioned in paragraph 2 above, some of the provisions of the latter Bill emanate from provisions contained in the said constitutional amendments.

8. Clause 16(1) provides for the continuation of regulations made in terms of the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 27 of 1989 (Bophuthatswana), and Decree No. 19 (Judges' Remuneration and Conditions of Service (of 1990) (Decree No. 19 of 1990) (Transkei). In the interests of legal certainty, the Committee requests the Department to address this issue and to prepare and promote one set of regulations in terms of Clause 13 as a matter of urgency, but within three months after the adoption of this Report.

Report to be considered.

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