Judges’ Remuneration and Conditions of Employment Bill; Criminal Procedure Second Amendment Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
29 October 2001
JUDGES’ REMUNERATION AND CONDITIONS OF EMPLOYMENT BILL; CRIMINAL PROCEDURE SECOND AMENDMENT BILL: DELIBERATIONS

Chairperson: Adv J H de Lange

Documents Handed Out:
Committee Report on the Judicial Officers Amendment Bill (see Appendix 1)
Committee Report on the Criminal Procedure Second Amendment Bill (Appendix 2)
Judges' Remuneration and Conditions of Employment Bill: Final draft
Criminal Procedure Second Amendment Bill: Working Draft 4
Criminal Procedure Second Amendment Bill: To be voted on
[email [email protected] for different drafts of Bills]

SUMMARY
The Committee commenced the final stages of deliberations Judges' Remuneration and Conditions of Employment Bill and the Criminal Procedure Second Amendment Bill. After the discussion of each Bill, the relevant drafter left to make the changes which had been suggested in the meeting. Each drafter later returned with the Bill in the form in which it would be voted on.

MINUTES
Judicial Officers Amendment Bill / Judges' Remuneration and Conditions of Employment Bill
The Committee went through the Judges' Remuneration and Conditions of Employment Bill on a clause by clause basis, finalising issues wherever this was possible.

Clause 1
There were a number of changes that had been made in the definitions clause.

‘active service’
There is now a distinction between permanent and part-time service.

‘annual salary’
This is now a definition on its own because the Committee had identified the need to distinguish ‘salary’ from ‘annual salary’. The term ‘salary’ had been used to indicate that amount of money received monthly by judges after they have retired. ‘Annual salary’ was then the amount of money the judge received annually in return for his services.

‘Constitutional Court judge’
There were two options. The Committee opted for the first because it best catered for the change in office that would be occurring in the Constitutional Court. The first was also a better option because it contained a reference to the date 7 June 1994. This was important because it would create an inclusive provision that would include all those judges who fall under this category. The date was of importance because the present President of the Constitutional Court was appointed on that date. This was so, even though the Constitutional Court existed well before this date. However, justice Chaskalson was charged with the task of helping with the setting up of the Constitutional Court.

“fixed date”
This had been defined as 1 April 1989 because this was the date on which the previous Act came into operation.

“judge”
Of the two options, the Committee decided to adopt the first one. However, subclause (iv) needed some changing. Adv de Lange was not pleased that there was a reference to Venda, Ciskei, Transkei and Boputhaswana as former Republics. He said that these places were not really Republics and would prefer to refer to them as the former Homelands or something in that vein.

Looking at this definition, Adv de Lange asked if it was not necessary that the Bill contain a definition of Constitution. This was because the present section referred merely to ‘the Constitution’. In this context it could have been construed as the Constitution of one of the Homelands.

‘service’
Adv de Lange noted the reference to ‘any other service which the Minister may entrust to him or her’ in subclause (d), saying that the word ‘entrust’ seemed strange in this context. He asked Mr Basset to come up with better wording. Adv de Lange then suggested that a better formulation would be to provide “any other service which the Minister may request him or her to perform.”

Clause 1(2), the application clause
Here Adv de Lange felt that the word ‘existed’ in (2)(b) should be replaced with the phrase “which has not yet been repealed”.

Once again Adv de Lange raised the fact that he, as did the Minister, did not like the reference to those former Homelands as Republics. To remedy this problem, in subclause (b), Mr Basset suggested that the clause be changed to read “to whom corresponding legislation of a Homeland as defined in item 1 of Schedule 6 of the Constitution..”.

Clause 2
Firstly it was noted that most of the heading would be falling away. Adv de Lange also suggested that that the word ‘remuneration’ be changed to ‘annual salary’. He felt this was necessary because in the definitions section the term ‘annual salary’ was defined in reference to Clause 2.

Adv de Lange noted that under this clause, a subclause (6) would be added. This new subclause would simply be the importation of clause 10A(6). Clause 10A was a Chapter 3 clause and Chapter 3 was to be deleted in its entirety - subject to the Committee going through that Chapter to check if any of its provisions were needed. The provision in clause 10A was felt to be necessary and had been “missed” by the Committee up to this point. The new provision would however only apply to Constitutional Court Judges and Adv de Lange asked that the drafters make this point very clear. Clause 10A(6) provided that no Constitutional Court judge could hold another office, in his or her capacity as a judge, for profit without the permission of the Minister.

Clause 4
This clause provided that Constitutional Court judges could serve on another bench once they had completed their term on the Constitutional Court bench.

Mr Mzizi (IFP) was confused as to the provision in clause 4(4)(a)(i). This subclause provided that if a Constitutional Court judge wanted to remain in service as an ordinary judge, then this would have to be indicated three months before the end of the term. Adv de Lange explained that this was required so that the necessary people received word before that judge was discharged. The judge, if allowed to continue to serve as an ordinary judge, would not be discharged and would thus not receive two salary cheques. This mechanism was thus simply an attempt to avoid having to pay two salary cheques.

Clause 5
Adv de Lange noted that he needed to speak to the Minister about this clause.

Clause 6
Clause 6 dealt with the non-taxable gratuity payable to judges.

Here Mr Mzizi reminded the Committee that his question was why and how judges received a non-taxable gratuity while other people never got such a luxury. His argument was that this could not be justified in terms of the equality clause in the Constitution.

Clause 7
Adv de Lange said that it should be made clear in this clause that judges have a choice as to whether they wanted to continue to serve or not. As it stood, it would seem that judges were obliged to perform such additional service.

Mr S Swart (ACDP) said that if that were the case, a judge would always refuse. He was confused as he thought judges were obliged to serve a minimum of three months service a year if asked to do so.

Adv de Lange said that this was true. However he felt that there were categories of service that a judge should never be forced to do. He reminded them that there were four different kinds of service, as enumerated in the definition of service in clause 1. He agreed that when judges were asked to serve on the bench, then they had no choice in the matter and were required to so serve. However, if a judge is asked to sit on a commission of inquiry or asked to perform another function which they feel they are not suited to perform, then that judge should have the scope to refuse such a request. Adv de Lange stressed that it was not desirable for judges to be able to refuse a request to go back to the bench.

Adv de Lange then directed his attention to clause 7(2) reminding the Committee that this was the provision that gave judges going back to the bench double-salaries. He explained that in terms of the section as it stood, judges who served their compulsory three months would receive a double-salary in the true sense of the word. However, once judges served longer than the three months and stayed on voluntarily, then they would receive remuneration equal to an amount determined by the President.

Mr L Landers (ANC) asked whether the change of the provision in this manner would not go against the principle in the Constitution that dictated that judges salaries could not be reduced.

Adv de Lange said that it would not. Even though the provision reduced the remuneration of judge in the strict sense, this provision was included in the Constitution at its conception. This reduction in salary thus formed part of the whole remuneration package. This complete package being the position which could not be subjected to reduction.

Schedule
Adv de Lange again noted that Venda was not in the Schedule. Despite Venda’s absence there would be no legal consequences because the new Act was being made applicable across South Africa. This would mean that any legislation that existed would be repealed.

These were the final stages of the consideration of this Act. The Committee discussed the Bill only so far as to check that changes it had decided on had been effected. Later on in the meeting, Mr Basset, the drafter, brought a cleaned version of the Bill before the Committee. This new text presented the final form of the Bill to which the Committee would be attaching a motion of desirability.

Criminal Procedure Second Amendment Bill
The Committee worked from the fourth draft of the working document, presented by Mr J Labuschagne, a drafter from the Department of Justice. Mr Labuschagne noted that the only matter still to be resolved was whether or not compensation could be included in the sentence agreement of Clause 2.

Clause 2
Adv de Lange told the drafter to delete the superfluous phrase “or his or her legal representative” in 105A(1)(a). These words were not necessary as in the same sentence, reference is made to an accused “who is legally represented”.

Dr Delport directed the Committee’s attention to Section 105A(1)(a)(ii) which provided for three possible outcomes to a plea of guilty.  These included the imposition of a just sentence which could include an award for compensation as contemplated in section 300, the postponement of the passing of sentence in terms of section 297(1)(b) or a just sentence to be imposed by the court, of which the operation of the whole or any part thereof is to be suspended in terms of section 297(1)(b). Dr Delport pointed out that there was an ‘or’ between the subsections of that provision and asked whether this meant one could only impose any one of those and not a combination of any two.

Adv de Lange elaborated on this point, asking further if compensation could not be made a condition of suspension of the sentence. In principle compensation could be made a condition for suspension, but in terms of the provision this could not be done here. He confirmed that this was the position under the section but asked if this was indeed the position that they wanted to create.

Mr J de Lange, also a drafter from the Department of Justice, said that this was indeed the position that they attempted to create. He said that nowhere in South African law was there a mechanism where suspension of a sentence was made subject to compensation.

Adv de Lange said that the principle might not exist at present in South Africa but there was nothing wrong with introducing such a principle if it did not fall foul of the Constitution.

Dr Delport gave the example of a car accident where the driver of the vehicle, while under the influence of alcohol, kills a child. The prosecutor identifies the fact that the motorist cannot get off scot free. For this reason he agrees to a five year prison sentence with two of those years suspended. However, those years held in suspension are made subject to a compensation order. This is done to alleviate the plight of the parents of that child.

Adv de Lange then said that he felt that this could be achieved through subsection (cc). He then however suggested that another provision be inserted to form subsection (dd). This new subsection would provide that an order for compensation could in addition be imposed in respect of (aa) to (cc).

Mr Labuschagne said that this would not be possible as it would create a whole new principle, as it would provide that compensation be a condition for suspension.

Once again Adv de Lange said that there was nothing wrong with creating such a new principle as long as it met the constitutional test.

Mr de Lange pointed out that in terms of Adv de Lange construction of the proposed section, the compensation order would not be a condition for compensation.

After this discussion Mr Labuschagne agreed that it would be possible to create a new subsection. The provision relating to a compensation order would thus be removed from subsection (aa) and inserted into the new subsection (dd). There would thus be an ‘or’ between subsections (aa) to (cc) with an ‘and’ before subsection (dd).

Adv de Lange asked why the reference to lesser and/or heavier sentences had been removed from subsection (9)(a).

Mr de Lange replied that the important part was the reference to just and unjust sentence. Once this was set as the standard it was no longer necessary to provide for lesser or heavier sentences.

Adv de Lange reminded them that the accused would have to be legally represented to use this provision. He asked that the drafters write up an explanation that would be given to the Public Prosecutor’s Office. This document should explain that only duly authorised prosecutors would be able to enter into negotiations in terms of the section.

He also mentioned that another one of his concerns was to what extent the provision would apply retrospectively. He said that the ideal situation would be that there would be no retrospective action of the Bill. Only accused who have not entered pleas would be able to exploit the provision.

The meeting was adjourned.

Appendix 1:
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.

Appendix 2:
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.