Judicial Officers Amendment Bill: public hearings

Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
18 February 2002
JUDICIAL OFFICERS AMENDMENT BILL: PUBLIC HEARINGS

Chairperson: Adv J H de Lange (ANC)

Relevant Documents
Judicial Officers Amendment Bill [B72-01]
JOASA Submission (Appendix 1)
ARMSA Further Submission (Appendix 2)

SUMMARY
The following concerns were raised during the discussions on the Judicial Officers Amendment Bill:
- the criteria proposed for holding the position of magistrate;
- the appointment of magistrates;
- the role of the Minister in such appointments;
- the salary mechanism for state prosecutors;
- the handling of same sex relationships in the Bill; and
- efforts made by JOASA to remedy these problems with the judiciary.

MINUTES
The Chair commenced proceedings by welcoming all present, and introduced the Judicial Officers Association of South Africa delegation (JOASA) to the members: Mr A le Grange, the JOASA President, Mr R E Laue, Vice President and Mr C J Musi, the JOASA Western Cape Chairperson. He then invited the JOASA President to address the committee.

Judicial Officers Association of South Africa (JOASA)
Mr le Grange stated that he would "put the point across is less than 10 minutes" so that bulk of the time may be spent on meaningful discussion.

JOASA supports Clause 1 and thus calls for the phrase "is appropriately qualified and is a fit and proper person" to be retained in clause 1(a) of the Bill. Consequently, the specific legal qualifications detailed in the brackets in that clause should be deleted. The call for the deletion of that portion of the provision is compounded by the fact that section 174(1) of the Constitution, dealing with the appointment of judicial officers, expressly includes the phrase "any appropriately qualified [woman or man who is a] fit and proper person". This section makes no reference to the lengthy and detailed qualifications proposed in clause 1(a) of the Bill.

The Chair agreed with the reasoning employed by Mr le Grange, but contended that the amendment itself is somewhat premature. The problematic portion of the amendment concerns the granting of powers to the Magistrate's Commission to set the requirements for and define the "fit and proper" standard. Here the commission could set a high or a low standard by which to measure this requirement. The Chair agreed, in principle, with the intention of the amendment to fix a single criterion by which this standard could be measured, but it is not completely clear why Parliament has decided to enact the amendment at this point in time.

Mr le Grange replied that the amendments could very well be intended as a response to the very recent Eastern Cape case of S v Piedt (which held that the minimum qualification for holding the office of magistrate is a baccalaureus legum degree [LLB]), and the Cape High Court case of S v Krause 2001 (2) SACR 506 CPD which held that an LLB is not the minimum requirement needed to hold the office of regional magistrate. The amendment could thus have been intended to resolve this problematic inconsistency created by these conflicting judgments.

The Chair stated that the Magistrates Commission has to re-evaluate the proposed inclusion and interpretation of the portion of clause 1(a) in bold, that deals with the alternate qualifications needed.

Mr le Grange stated that the reason for its inclusion is the fact that there are several active legal practitioners who are "more than qualified" to hold the office of magistrate, but who would be prevented from so doing merely because they hold the BProc degree or a Legal Diploma, and not the more recognised LLB degree.

The Chair expressed great reluctance to "hand over the transformation of the judiciary to a Magistrates Commission". This decision is compounded by the fact that the bulk of the complaints received in the appointment of judicial officers relate to problems with this commission.

Mr le Grange informed the Chair that the subcommittee receives its mandate from the magistrates committee. In fact, the final decision is in fact made by the Magistrates Commission itself. The Magistrates Commission has been empowered, and indeed directed, to not only busy itself with remuneration of judicial officers, but also with the development of policy directives on those matters. In fact, it has been reported that the Magistrates Commission has recently made an appointment without conducting interviews.

The Chair informed Mr le Grange that his input is merely strengthening the Chair's case with regard to the problems with the Magistrates Commission. If it is indeed true that the amendment is intended as a response to the Southwood decision, then that is the "worst reason" for such an amendment, because that case is now presently on appeal. The point here is that the Bill seeks to address a matter that has to happened yet, and the Constitutional Court decision on the matter has not been handed down yet. This committee thus has to question whether it is in fact "doing the right thing" here in enacting this amendment. The primary problem is the Magistrates Commission and the exercise of its functions. Furthermore, the proposed amendment to section 10 of the Magistrates Court Act 90 of 1993 (the principal Act) by clause 2 of the Bill would "never be passed" by this committee, because it effectively removes the role played by the Minister in the appointment process.

Mr le Grange contended that the inclusion of the phrase "on the advise of" in the proposed amendment to section 10 of the principal Act effectively affords the Minister the discretion in the weight to be attached to the recommendations of the Magistrates Commission. The interpretation proposed by the Chair therefore does not hold, and the proposed amendment creates no problems.

The Chair disagreed with Mr le Grange, and maintained that the role or input of the Minister in the appointment procedure is now relegated to "a rubber stamp". Furthermore, the proposed amendment to section 10 of the principal Act also defies established international legal practice in terms of which the Minister has a significant, if not dominant, role to play in this process. The Bill should facilitate regular interaction between the Minister and the Magistrates Commission. Also, the amendment should allow the Minister to request the Magistrates Commission to supplement the list of candidates chosen by the Minister himself, rather than erode the influence of the Minister in the process. Moreover, Ms F I Chohan-Kota (ANC) reported that Magistrates Commission meets only once every three months. Is this the sort of institution into whose hands the transformation and future of our judiciary should to be placed?

Mr le Grange contended that the Magistrates Commission has solid and efficient structures in place, and all that is needed is proper leadership.

The Chair thanked Mr le Grange for acknowledging the "strong weaknesses" within the structure of the Magistrates Commission. Mr De Lange (drafter for the Department) is requested to provide members with copies of the cases referred to by Mr le Grange.

The Chair then focussed the attention of the committee to the proposed amendment to section 9(3) and (4) of the principal Act by clause 1(b) of the Bill, that deals with the qualifications needed to be appointed as an acting and temporary magistrate. The JOASA delegation is requested to clarify the distinction between acting and temporary magistrates.

Mr Laue replied that the term "acting magistrate" refers to the magistrate who is presently occupying the position in the absence of the appointed magistrate, without the position having being vacated. A "temporary magistrate" however, refers to the office held by a magistrate appointed for a limited period of time only, as an additional or surplus member to the judicial personnel. The latter is therefore not filling the post of an official member of the judicial staff, but his/her services are employed, for a certain period of time only, where additional magistrates are needed to deal with the staggering workload, for example.

The Chair stated that Advocate H C Schmidt (DP) had suggested that these temporary and acting magistrates do not have security of tenure. This has to be remedied.

Mr le Grange replied by informing both Advocate Schmidt and the Chair that, in fact, they should enjoy the same benefits as judges.

The Chair requested Mr le Grange to explain further.

Mr le Grange responded by stating that this matter is sufficiently covered by the principal Act.

The Chair maintained that, as a matter of principle, equality between the two kinds of judicial officers has to be expressly included in the amendment. Furthermore, the regulations following the Bill should be entrusted with the substance of this concern, for it is easily amended.

Mr De Lange stated that the Constitutional Court judgment is awaited, as it would state the accepted legal position in this regard.

The Chair then thanked both the JOASA delegation and Mr De Lange for the attention paid to this important issue.

Mr Travers informed members that as far as the "competent person" requirement in the proposed amendments to sections 9(3) and (4) of the principal Act is concerned, the current section 9 provides that the "magistrate at the head of a regional division" could, in effect, appoint someone without an LLB degree to do remands. In fact, in Australia the regional magistrate is lawfully empowered to authorise the clerk of the court to do such remands. This route offers a "simple solution" to this problem.

The Chair agreed that this should be incorporated in the Bill, as it gives "flexibility" to acting magistrates. However, the "appropriately qualified" standard has to be elevated in the case of permanent magistrates.

Mr le Grange stated that the Independent Commission for the Remuneration of Public Office-bearers Act 97 of 1997 provides that the State President may appoint 7 persons to the council to look into the salaries and benefits to be given to judicial officers. That Act therefore creates a presidential prerogative to make such appointments, but it does not specifically state that "a judge" may be appointed.

Mr Laue suggested that it should be amended so as to include the appointment of parliamentarians, as public office-bearers, so that judges may also be included in the provision.

The Chair called for the Bill to be amended accordingly.

Mr Laue stated that JOASA did not object to the principle that a judge may serve on the commission.

The Chair disagreed with Mr Laue, and stated that he did not understand the recent complaints lodged by magistrates regarding their annual salaries and their increasing tendency to become involved in matters of politics. The Chair had received a graph indicating the increase in salaries paid to judicial officers since 1994, and it clearly illustrated that their salaries had "shot through the roof". The current starting salary of a magistrate is R204 000 per annum.

Mr le Grange contended that the reason for such salary increases is the fact that, in the past, the state prosecutors had been exclusively appointed as magistrates. "The salaries of the magistracy is not sufficiently attractive to draw the right hardware but also the software to the lower court bench. If the salary packages are sufficiently attractive, then persons we could like to see grace our benches from attorney and advocates will apply for vacant posts and be appointed. At present the salary packages are not attractive enough. Therefore because of the poor salaries of the prosecutors, here we are talking about the foot soldiers, those that are appearing in court, are applying for these posts and get appointed. This situation cannot be tolerated.

The Chair then suggested that a new salary structure for the (senior) state prosecutors has to be devised, so that they have an incentive to remain within the Department. If this is not done, the Department would continually lose those prosecutors with the 5 years of experience in the criminal justice system to the bench.

Mr le Grange agreed and informed the committee that, currently, there are very few (if any) sufficiently experienced state prosecutors at the regional court level, and important cases are heard at this level.

The Chair reiterated that the problem with the unacceptable number of experienced prosecutors moving to the bench should be addressed immediately, if only for the reason that there are insufficient financial incentives to remain with the Department. It is hoped that the current amendment would resolve this problem.

Mr le Grange stated that JOASA does not object, in principle, to the inclusion of the phrase "a judge", but does have a problem with the wording of the section.

The Chair then opened the floor to questions from members.

Advocate Smith requested clarity on the composition of the Magistrates Commission, as far as effecting or reflecting transformation is concerned.

The Chair answered by informing Advocate Smith that is similar in composition to the Judicial Services Council (JSC). The only difference is the fact that the Magistrates Commission has six members from the National Assembly, whereas the JSC has only four.

Mr le Grange agreed with the Chair.

The Chair then summarised the apparent problems with the Magistrates Commission as follows:
- the leadership of the Magistrates Commission;
- the details of the magistrates are forwarded to the Magistrates Commission, but it does not
have sufficient time or equipment to deal with these matters. The result is that, instead of
processing these matters itself, they are delegated to the subcommittee, who ultimately does a
"bad job";
- the commission meets just once every 3 months; and
- the capacity and competence of the staff.

Mr Laue suggested that an additional problem here is that, by and large, the recommendations made by the commission "have no teeth, or clout".

The Chair informed Mr Laue that the commission, like the JSC, is not intended to have "clout" here, as they are not involved in matters of policy. These bodies only offer advise and make recommendations.

Mr Laue then inquired of the Chair who exactly has "clout" in these matters.

The Chair replied that this lies with the politicians. The judiciary cannot be allowed to exercise any sort of influence over such matters. The primary concern of the Magistrates Commission regards the appointment and removal of magistrates, and this is the accepted position in other jurisdictions as well.

Mr le Grange agreed with the Chair as far as the problem with the leadership of the Magistrates Commission is concerned, and stated that it is this problem, is essence, that JOASA seeks to solve.

The Chair informed the committee that at a recent bosberaad it was highly recommended that more formal ties between the magistrate at the head of a regional division, the Chief Justice of the Supreme Court of Appeal and the Magistrates Commission. The aim here is to facilitate the discussion of pressing concerns and problems experienced with the judiciary, so that the magistrates and the commission feel that "there is someone senior enough" to offer proper assistance and guidance.

Advocate M T Masutha (ANC) then drew the committee's attention to the proposed definition of "partner" in clause 4(d) of the Bill. Mr De Lange was asked to clarify whether there is currently any mechanism within the Department itself that allows the regulations themselves to be amended, and not the specific provision within the piece of legislation.

Mr De Lange replied that all regulations have to be tabled to- and subsequently passed by Parliament to be valid.

Mr Laue informed Advocate Masutha that all the regulations are examined and brought in line with contemporary constitutional interpretations.

The Chair requested Mr De Lange to further examine the concern raised by Advocate Masutha, especially as far as the same sex relationships are concerned. Clause 4(d) has to expressly accept the constitutional principle of equality. Mr De Lange is also requested to re-evaluate the following issues raised during this session:
- the appointment of magistrates;
- the role of the Minister in such appointments;
- the salary mechanism; and
- the same sex relationships.

The Chair then focussed the attention of the committee to the "crux of the matter". It has recently been reported that the Witwatersrand Division has recently passed a vote of no confidence in both the Director General (DG) and the Minister. The central question here is why are magistrates involving themselves in votes of no confidence and strikes? The antics of these "buffoons" are frustrating the plans of the Minister to create a single, unified judiciary. JOASA is requested to respond to this.

Mr le Grange responded that "there was also a vote of no confidence in the Director of Personnel. JOASA did apologise to the ministry as well as the Director of Personnel. He agreed with the Chair that judiciary should not be seen to get involved with politics. JOASA never voted for a strike or a go-slow. JOASA implemented the work-to-rule. This mandate was given by the magistrates at our annual general conference in East London. As leaders we had to carry out that mandate."

The Chair thanked Mr le Grange for the "open and forthright" manner in which he responded to this important matter. The pivotal point here is that judicial officers, as soon as they occupy take office, make certain sacrifices and are prohibited from doing certain things, like lodging complaints regarding their salaries, and engaging is strikes. This is because they "are in a different place", a unique position with very specific mandates and responsibilities. At the end of the day, these "buffoons" are bringing themselves into disrepute by not affording themselves, and indeed judicial officers generally, the status they deserve as authorities of law. They "cannot let their emotions run the show". Furthermore, their antics have created the impression that the Department is not sympathetic to their needs, interests and problems, but this could not be said to be the case.

The South African judiciary can only be effectively transformed by the members of the judiciary themselves, and this change can only be effected by the leadership of the magistracy itself. It is thus hoped that the relationship suggested during the bosberaad is brought into fruition. If such disregard continues, the aim and process of creating a single judiciary will be destroyed, together with the amendments proposed by the Bill. Those magistrates should closely examine the local and international cases detailing the proper behaviour befitting a competent and worthy judicial officer. The success or esteem of a country is measured by its economic and judicial systems, and this problem with these magistrates has to be resolved as soon as possible or South African would fall into disrepute. These strong words not mean that this committee is against the magistracy, as alleged, but is rather intended to convey the important message that by continuing with such behaviour only succeeds in further damaging the reputation of the magistracy.

Mr le Grange thanked the Chair for his concern and valuable input. This committee is reminded that there are magistrates who are working exceptionally hard without access to proper facilities and without sufficient resources. The Magistrates Commission does not only deal with salary disputes and the appointment of magistrates, it also ensures that justice is served generally. The recommendations and concerns raised by this portfolio committee will be duly processed by JOASA.

Advocate Masutha agreed that several magistrates are working in appalling conditions. In fact, during 2001 this committee inspected 4 units in 2 different provinces to attain first hand experience of the working conditions for judicial officers in those areas. A Northern Province office was visited, and the conditions were "appalling" and the building was "falling apart", yet the magistrate is "the most effective [the member has] seen". The committee also visited a brand new courthouse, yet here the functioning of the court was really bad, and it had a "huge backlog". Serious efforts have to be made to ensure "a culture of commitment" within the magistracy.

Mr le Grange replied that a task team has been established to devise means of reducing the workload by allocating certain administrative functions usually performed by the magistrate to another court official. The committee is assured that JOASA is "doing [its] part".

Imam G Solomon (ANC) contended that Mr le Grange cannot should not exaggerate the situation by suggesting that the South African public is against the magistracy. It is merely that the people only ask for, and deserve, an efficient and just judicial system.

Mr le Grange responded that this is indeed the perception of the public, and the primary reason for it is their first point of contact with the South African judicial system: the lower courts. It is well known that these courts are the most taxed and strained as far as caseloads are concerned, with case rolls being backlogged for up to several years. Concerted efforts are being made to make these more "user friendly". It is hoped that the Bill's amendments would improve the current position.

The Chair thanked the JOASA delegation for addressing this committee, and encouraged regular dialogue between the two. He reiterated that the two bodies have to work together here, because the common goal is having a judicial system all South Africans can be proud of, and one that draws the attention of foreign jurisdictions.

The Chair then called on Mr Travers, of the Association of Regional Magistrates of South Africa [ARMSA], to commence his presentation.

Mr Travers informed members that he would not be repeating the detailed contents of the document provided to the members, but that certain key point would be highlighted.

The primary concern here is the proposed clause 10 of the Bill, and it is ARMSA's recommendation that the decision of the Constitutional Court in the Southwood case be handed down and examined before enactment of this clause. In fact, the document provided discusses that fact that in foreign jurisdictions judicial officers are appointed by the Head of State.

The Chair agreed that the Magistrates Commission itself could recommend the qualifications necessary to be appointed as a magistrate, but a political figure cannot be allowed to decide which candidate is appointed as magistrate. Rather, and independent process has to be devised to deal with this.

The remainder of this meeting was not minuted by PMG.

Appendix 1:
JOASA
JUDICIAL OFFICERS' ASSOCIATION OF SOUTH AFRICA
REPRESENTATIONS ON THE JUDICIAL OFFICERS AMENDMENT BILL [B 72 - 2000]

INTRODUCTION
1. During the course of 2001 JOASA submitted written representations on the Bill, but was unfortunately not able to attend the public hearings, which, as it turned out, were abbreviated. These representations are in response to the invitation concerning outstanding aspects of the Bill, which were not dealt with last year and which are to be dealt with during the 2002 parliamentary session.

2. Magistrates have since 1995 sought to bring about changes to legislation relating primarily to their conditions of service. The underlying reason being the dominant role that policy considerations, relating to the determination of remuneration of public servants, play in regard to the determination of magistrates' remuneration. This is viewed as inimical to judicial independence. The Minister of Justice and Constitutional Development, as recently as 3 May 2001 expressed the view that it is unavoidable to look at increases for magistrates without looking at increases for public servants and he referred to this as a fundamental problem. He indicated that two years previously he had sought to expedite the process for a Judicial Remuneration Commission and had directed that the process, which had subsequently been suspended, should be reinstated so as to hasten the process of separating the issue of salaries for magistrates from public servants - hence the current Bill.

3. We therefore propose to deal mainly with the clauses in the Bill relating to ma-gistrates and will address issues concerning judges only to the extent that they affect the position of magistrates.

4. Where we support clauses in the Bill we will motivate briefly and where we do not support any clause, or where we seek an inclusion therein, we will substantiate briefly.

REPRESENTATIONS ON THE BILL
Ad Clause 1(a)
5. We support the principles underlying this clause. The Magistrates Commission and its committees conduct public interviews with candidate appointees in accordance with policies and directions issued in accordance with the Magistrates Act, 1993. Apart from academic qualifications, which may be determined by the Commission as being appropriate to any envisaged appointment in the lower courts, other considerations and criteria relevant to the question of appropriate qualification, such as experience and proficiency would of necessity also have to be determined and evaluated on a case-by-case basis. We draw attention to the following remarks by Griesel J ( Desai J concurring), in S v Krause 2001 (2) SACR 506 CPD at 516i, which seem relevant:

"Finally, it will not be inappropriate, I am sure, if I add the following obiter remarks, based on certain problems that were highlighted during the course of argument in the present matter:

- The existence of s 9(4) creates the mechanism whereby the requirements of s 9(3) may be undermined or circumvented, Why, after all, go through the trouble of finding a suitable candidate with the necessary qualifications to be appointed as an acting regional magistrate and having to report the existence of the vacancy to the Magistrates' Commission after three months, if someone without those qualifications could be appointed as a temporary magistrate to perform exactly the same functions. This appears to have happened in the present case, where Mr du Plessis has de facto been 'acting' as a regional magistrate since July 2000.
- In conclusion, attention may be drawn to the apparent anomaly created by the provisions of s 9(1)(b) of the Act, which prescribe certain minimum academic qualifications in respect of regional magistrates, whereas s 172(1) of the Constitution, to which reference has been made above, simply requires that a judicial officer must be 'appropriately qualified' and must be a 'fit and proper person', which formula is working quite well as far as appointments to the High Court are concerned."

6, Although s 22 of the Constitution, which guarantees the right of citizens to choose their occupation or profession, permits the practice thereof to be regulated by law and s 174(7) of the Constitution requires judicial officers other than judges to be appointed in terms of an Act of Parliament, which must ensure that the appointment takes place without favour or prejudice, the question arises whether sustaining the anomaly referred to constitutes an unreasonable and unjustifiable limitation of that right, or whether it constitutes unfair discrimination between judicial officers of the higher and lower courts, where they are equal before the law in the context of s 172(1) of the Constitution.

7. We submit, moreover, that the appointment requirements (as envisaged in this clause) should be uniform in respect of regional and district magistrates, whether as a substantive/permanent appointment or in an acting or temporary capacity. There is no rationale for placing the entry threshold at the lowest level higher. The words: "of a regional division" in the first and second line should, therefore, be deleted and the expression "assistant magistrate" should be deleted wherever it appears in the Act, since the performance of agency and administrative functions on behalf of government departments has ceased.

8. The words: "and the Magistrates Commission has informed the Minister that he or she is suitable for appointment as a magistrate of a regional division" at the end of the clause are superfluous and should be deleted in the light of clause 2 of the Bill, which we support.

Ad Clause 1(b)
9. We support this clause in principle, subject to the following: The words: "or an officer in the Department of Justice and Constitutional Development" should be deleted entirely wherever they appear in section 9. This arrangement is a remnant of the old order, where magistrates were public servants. Over the past years this arrangement has in any event not been put into practice. With the introduction of the Cluster system, this authority has consistently been assigned to the designated magistrates for the purpose of expediency and facilitating mobility of magistrates.

10. The expression: "authorized in writing thereto by the Minister" wherever it appears in section 9 should be deleted. The Minister in any event appoints chief magistrates and acting chief magistrates. Its retention creates uncertainty as to whether such authorization exists or not and provides no rationale for a distinction between a chief magistrate and an acting chief magistrate, particularly inasmuch as it creates an unnecessary impediment in the practical and efficient application of the judicial administration process.

11. We submit that the conflicting High Court views concerning the minimum qualifications of acting and temporary magistrates and, subject to any ruling in the Van Rooyen case on the matter, should not detract from the obvious practical need for such appointments in both the regional and district courts, subject to what has been submitted above.

Ad Clause 2
12. As previously indicated, we support this clause. We do so firstly on the grounds that, if minimum academic requirements are, at the end of the day, considered to be necessary, the Magistrates Commission would have to consider making recommendations for appropriate regulations as contemplated in section 11 of the Magistrates Act, 1993. Secondly, magistrates and private practitioners participate in the appointment process under the auspices of the Magistrates Commission, subject to its policy and directions. That process, which is practical and ought to be retained, would have preceded any advices to the Minister regarding an appointment. Any grounds for criticism of the Executive in such circumstances would be eliminated. Similarly, clause 22 is supported.

Clause 11
13. The recognition of a surviving partner, in addition to a spouse for purposes of pensions and gratuities should be extended to magistrates' conditions of service. We do not propose that this be done in terms of the Bill, but merely wish to indicate that magistrates do have an interest with regard to developments on this topic where judges are concerned. In principle there should be no distinction between members of the judiciary and, to the extent that it is permissible, we seek a recommendation from this Committee relating to the promulgation of appropriate legislation for magistrates.

Ad Clause 21
14. We support this clause in principle, (subject to the retention of clause 27(5)). We submit, however, that the inclusion of the word "benefits" in clause 23(e) suggests that this word should be included in the definition.

Ad Clause 22
15. We support this clause.

Ad Clause 23(a)
16. We wish to indicate that the retention of the definition of "magistrate" in section 1 of the Magistrates Act, 1993 in the current context, excludes magistrates in an acting and temporary capacity from all but the provisions of clauses 23(a) and 23(c) of the Bill and the entire Magistrates Act, 1993. Consistency demands that they be included at least in clauses 23(d) and (e). Provided clause 27(5) is retained, we support clause 23(a) in principle.

Ad Clause 23(b)
17. We support this clause.

Ad Clause 23(c)
18. Subject to our submissions in paragraph [16] above, we support this clause in principle, but submit that the context of section 213 of the Constitution suggests that the clause reflects a specific reference to the wording in section 213(2)(b) of the Constitution.

Ad clause 23(d)
19. Subject to our submissions in paragraph [16] above, we support this clause

Ad Clause 23(e)
20. Subject to our submissions in paragraphs [14] and [16] above, we support this clause in principle. Section 174(7) of the Constitution, which requires magistrates to be appointed in terms of an Act of Parliament, also implies that conditions of service, which includes remuneration in particular, should also be dealt with in terms of an Act of Parliament. Those aspects relating to the principle of judicial independence, such as financial security and security of tenure must, therefore, also be dealt with in terms of an Act of Parliament. The precariousness of that financial security has already been alluded to in the introduction and the remedy lies in providing the legislation contemplated in clause 23(e). Permitting magistrates the facility of an Independent Remuneration Commission will not only enhance their independence, but will also grant their recognition as part of the Judiciary, which, under the doctrine of the separation of powers stands on an equal footing with the other two pillars of State.

Ad Clauses 24, 25, 26 and 27(5)
21. These clauses are supported.

Yours sincerely
D. vZ. V.D. MERWE
NATIONAL SECRETARY: JOASA

Appendix 2:
FURTHER SUBMISSIONS ON THE JUDICIAL OFFICERS AMENDMENT BILL [B72-2001]