Judicial Officers Amendment Bill: public hearings

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Justice and Correctional Services

17 February 2002
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Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE

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]

PART 1: THE MECHANISM AND CRITERIA FOR THE APPOINTMENT OF JUDICIAL OFFICERS IN THE REGIONAL COURTS.

by

GRAHAM NOEL TRAVERS on behalf of the JUDICIAL INDEPENDENCE and

EXECUTIVE MANAGEMENT COMMITTEES of the ASSOCIATION OF REGIONAL MAGISTRATES OF SOUTH AFRICA (ARMSA)

15 FEBRUARY 2002


PRELIMINARY REMARKS

  1. ARMSA was given an opportunity to make further submissions on the Judicial Officers Amendment Bill [B72-2001] ("the Bill").
  2. Certain portions of the Bill were removed and separately enacted as the Judges Remuneration and Conditions of Employment Act, 2001.
  3. The remaining provisions of the Bill were held over to 2002.
  4. ARMSA wishes to make further submissions concerning the following matters:
    1. A Compensation/Remuneration Commission for Judicial Officers (Clauses 1(a), 2 and 22 of the Bill).
    2. Disciplinary Measures for magistrates and regional magistrates.
    3. The mechanism for the appointment of magistrates and regional magistrates.
    4. The appointment criteria for magistrates and regional magistrates.
    5. Acting and temporary appointments.
  5. These submissions will be divided into four parts:
    1. Part 1: The mechanism and criteria for the appointment of magistrates and regional magistrates.

    (b) Part 2: A complaints mechanism for magistrates and regional magistrates (clauses 18 to 30 inclusive the Bill).

    (c) Part 3: Acting and temporary appointments in the magistrates courts (clause 1(b) of the Bill).

    (d) Part 4: A compensation/remuneration commission for judicial officers in both the higher (superior court) and lower magistrate and regional court) judiciaries (clauses 21, 23, 24, 25 and 26 of the Bill).

  6. The division of the further submissions into parts is an effort to minimise the effect of the delay in submitting these submissions to the Portfolio Committee.
  7. THE CRITERIA FOR THE APPOINTMENT OF REGIONAL MAGISTRATES

    INTRODUCTION

  8. Clause 1(a) of the Judicial Officers Amendment Bill (the "Bill") proposes the abolition of the prescribed legal qualifications for magistrates of a regional division ("regional magistrates").
  9. As previously stated ARMSA opposes the abolition of the specific qualifications for appointment as regional magistrate.
  10. This matter was debated at the 2001 ARMSA Annual Congress and it was unanimously decided to mandate the incoming National Executive and Judicial Independence Committees to request that specific appropriate qualifications be retained in the Magistrates' Courts Act.
  11. THE NEED FOR JUDICIAL OFFICERS TO BE APPROPRIATELY QUALIFIED IN LAW

  12. Both magistrates and regional magistrates (collectively referred to as "judicial officers") make decisions that impact on the lives of ordinary South Africans on a daily basis.
  13. It is most important that these judicial officers possess the skills necessary to carry out their functions properly and competently, given that these decisions affect the lives, liberty and property of those appearing before the courts.
  14. Most South Africans interface with the lower courts and not the superior courts. Therefore the public must have confidence in the competence of those judicial officers presiding in the lower courts.
  15. The work of the judicial officer is unique. Unlike the public servant, he exercises the direct authority of the State (the judicial authority). He has to make decisions alone and sometimes very quickly.
  16. The impact of a wrong decision may be far-reaching. For instance if an undefended accused's rights to cross-examine a state witness are not explained properly it may lead to the conviction being set aside on appeal or review. To remedy this mistake a retrial would have to take place.
  17. Similarly, if a judicial officer who does not passes the necessary skills sentences an accused inappropriately in a serious matter (such as child rape), the prosecution would have to appeal to a higher court to rectify the matter.
  18. The requirement that judicial officers possess those skills necessary to perform their functions properly and competently is essential to minimise (to the greatest extent possible) any potential prejudice to the prosecution service, accused persons, victims of crime and their witnesses, the administration of justice and the public in general.
  19. The nature of judicial work is such that every person appointed to hold judicial office, at whatever level in the court system, must possess at the time of appointment the minimum skills necessary to perform the functions that the judicial officer concerned will normally be called upon to perform in his or her court.
  20. This is also the view of the Judge President of the Transvaal Provincial Division of the High Court of South Africa and Chairperson of the Magistrate's Commission, Judge B Ngoepe.
  21. It is for the reason mentioned in paragraph above, we submit, that the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) ("the Constitution") contains the following provision in section 174(2):
  22. "The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed."

  23. This provision is in contradistinction to the provisions of the section 195(1)(i) of the Constitution, which pertains to public administration (the public service). That section provides:
  24. "Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation."

  25. It is trite law that a difference in wording by the legislature prima facie indicates a difference in intention.
  26. There is a clear difference in wording of section 174(2) and 195(1)(i) of the Constitution (in respect of judicial officers and public servants respectively).
  27. The constituent assembly clearly contemplated a difference in the treatment of judicial officers and public servants respectively, according to the different work environments and requirements. This is reflected in the different wording.
  28. As was stated by SAWANT J of the Supreme Court of India in All India Judges' Association v Union of India, All India Reports (AIR) 1993 Supreme Court (S.C.) 2493 at 2502-3:
  29. "The judicial service is not service in the sense of 'employment'. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature … The parity is between the political executive [cabinet ministers], the legislators [members of parliament] and the Judges and not between the Judges and the administrative executive [public servants]. The judges at whatever level they may be represent the State and its authority unlike the administrative executive and the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally."

  30. The above decision dealt with judges of what in India is termed the "subordinate judiciary" in the various states and territories of the Union of India, i.e. the lower courts.
  31. THE TERM "APPROPRIATELY QUALIFIED"

  32. Regarding the meaning of the term "appropriately qualified", which appears in section 174(1) of the Constitution, the stance of ARMSA is that it encompasses an appropriate degree in law from a recognised tertiary institution in South Africa and appropriate practical experience in the administration of justice.
  33. In this regard the remarks of SAWANT J in All India Judges' Association v Union of India, supra at 2505/06 (paragraph 7):
  34. "The recruitment of raw graduates as judicial officers without any training or background of lawyering has not proved to be a successful experiment. Considering the fact that from the first day of his assuming office, the judge has to decide, among others, questions of life, liberty, property and reputation of litigants, to induct graduates fresh from the Universities to occupy seats of such vital powers is neither prudent nor desirable. Neither knowledge derived from books nor pre-service training can be an adequate substitute for the first-hand experience of the working of the court system and the administration of justice begotten through legal practice. The practice involves much more than mere advocacy. A lawyer has to interact with several components of the administration of justice. Unless the judicial officer is familiar with the working of the said components, his education and equipment as a judge is likely to remain incomplete. The experience as a lawyer is, therefore, essential to enable the judge to discharge his duties and functions efficiently and with confidence and circumspection."

    DISTINCT MINIMUM QUALIFICATIONS FOR MAGISTRATES AND REGIONAL MAGISTRATES RESPECTIVELY

  35. ARMSA can also not, with respect, agree with the submission of JOASA that the minimum criteria for appointment as magistrate and regional magistrate be the same.
  36. Although, in general, magistrates presiding in criminal court and regional magistrates perform the same function (that of the adjudication of criminal matters) their functions differ in material respects.
  37. JURISDICTION OF THE MAGISTRATES' COURTS

  38. Magistrates' courts deal with less serious criminal matters. In terms of section 89(1) of the Magistrates' Courts Act, 1944 (Act 32 of 1944) a magistrate's court may not try the offences of treason, murder and rape. The various Provincial Directors of Public Prosecutions have issued instructions further prescribing what matters may be tried in a magistrates court.
  39. A magistrate's court may, under its general criminal jurisdiction, impose imprisonment for a maximum period of three (3) years (section 92(1) of the Magistrates Courts Act).
  40. Depending on whether the presiding magistrate has held the substantive rank of magistrate for more or less than seven (7) years, where an accused is undefended all sentences of imprisonment in excess of six (6) or three (3) months are automatically reviewable by a superior court in terms of section 304 of the Criminal Procedure Act.
  41. The penal jurisdiction of a magistrate is increased under various statutes (such as the Stock Theft Act of 1959 and the Drugs and Drugs Trafficking Act of 1992) but the sentences of undefended accused remain automatically reviewable.
  42. A magistrates court cannot declare a person to be an habitual criminal under section 286(1) of the Criminal Procedure Act 1977 (Act 51 of 1977) nor can it impose an indeterminate sentence upon a person found to be a dangerous criminal under section 286A and B of the Criminal Procedure Act.
  43. In general a magistrates court is more involved in fact finding and less involved with deciding on legal questions such as the admissibility of evidence.
  44. The presiding officers presiding in the magistrates courts dealing with offences where the court has increased jurisdiction are as a rule the more experienced of the magistrates (particularly in the larger centres where specialist courts are in operation).
  45. JURISDICTION OF THE REGIONAL COURTS

  46. The regional courts deal exclusively with serious criminal cases. In terms of section 89 of the Magistrates' Courts Act a regional court may not try the offence of treason. This means that the regional courts may try all serious crimes including murder, rape and robbery.
  47. In practice only a few most serious and high profile matters on charges of murder, rape and robbery are heard in the High Court.
  48. A regional court, under its general criminal jurisdiction, can impose imprisonment for a maximum period of fifteen (15) years (section 92(1)).
  49. None of the sentences imposed by a regional court are automatically reviewable under section 302 of the Criminal Procedure Act. The superior courts retain their inherent common law power to review the proceedings of all lower/inferior/subordinate courts under their jurisdiction. There is an automatic statutory right to appeal to a superior court from both a magistrates and a regional court.
  50. A regional court can declare an accused person to be an habitual criminal in terms of section 286(1) of the Criminal Procedure Act. A person who is declared an habitual criminal will serve between seven (7) and fifteen (15) years imprisonment before qualifying to be released on parole.
  51. DECLARATION AS A "DANGEROUS CRIMINAL"

  52. A regional magistrate can also declare an accused person to be a "dangerous criminal" after the necessary psychiatric evaluation and finding has been made.
  53. A person so declared must be sentenced to "indeterminate imprisonment" under section 286B(1)(a) of the Criminal Procedure Act. The accused will serve imprisonment for a maximum period of the court's jurisdiction (fifteen years in the case of the regional court) or such lesser period as the court may order (section 286B(1)(b)).
  54. After the accused has served the period of imprisonment concerned, the accused again appears before the court for that court to reconsider the sentence originally imposed (section 286B(2)). The court then has all the same power as if it were sentencing the accused after conviction. The court may not decide upon a sentence until it has considered a report from a parole board (section 286(4)(a)). This procedure may be repeated until the accused dies or until the sentence is converted into correctional supervision, accused is released unconditionally or subject to conditions.
  55. After the court has considered sentence it may:
    1. confirm the sentence of indefinite imprisonment and direct that the accused appear before the court after a specific period (which may not exceed fifteen (15) years in the case of a regional court);
    2. convert the sentence to correctional supervision;
    3. release the person with or without conditions (section 286B(4)(b)).
  56. Where the court confirms the sentence of indefinite imprisonment the same procedure will be repeated at the accused's next appearance before the court (section 286B(7)).
  57. The finding of any individual to be a "dangerous criminal" has the most severe consequences for that individual's life, liberty and dignity. The requirements of the section are very stringent and the provision is meant to deal with, inter alia, psychopaths.
  58. Similar provisions exist in other jurisdictions such as Australia and Canada. Usually only superior and those statutorily created courts termed "intermediate courts" are vested with the jurisdiction to declare persons to be "dangerous criminals".
  59. MINIMUM SENTENCING LEGISLATION

  60. Section 51 of the Criminal Law Amendment Act, 1997 (Act 105 of 1997) ("the Minimum Sentences Act") vests the regional courts with increased jurisdiction in respect of certain scheduled offences.
  61. The offences are divided into four categories (Parts I, II, III and IV of Schedule 2 to the Act).
  62. Part I offences, including pre-mediated murder, child rape, gang rape and the like constitute the most serious category offences. Here the regional may try the matter up to the stage of conviction but must commit the convicted person to the High Court for sentence.
  63. The High Court concerned must sentence a person convicted of a Part I offence to life imprisonment unless the court finds "substantial and compelling circumstances" justifying the imposition of a lesser sentence (section 51(1)).
  64. Part II offences, including robbery with aggravating circumstances (as defined in section 1(1) of the Criminal Procedure Act) and murder, other than murder mentioned in Part I of Schedule 2 of the Minimum Sentences Act, can be dealt with wholly by the Regional Court.
  65. In terms of section 52(2) of the Minimum Sentences Act a regional court increased sentencing jurisdiction regard to offences listed in Part II and III of Schedule 2 to the Minimum Sentencing Act.
  66. A regional magistrate must impose sentences of between fifteen and twenty years, twenty and twenty-five years and twenty-five and thirty years direct imprisonment upon a first, second and third-plus offender respectively, convicted of an offence listed in Part II of Schedule 2 (section 51(2)(a)).
  67. In the case of a Part III offence a regional court must impose sentences of between ten and fifteen years, fifteen and twenty years and twenty and twenty-five years direct imprisonment upon a first, second and third-plus offender respectively (section 51(2)(b)).
  68. In the case of Part IV offence a regional court must impose sentences of not less than five, seven and ten years direct imprisonment upon a first, second and third-plus offender, respectively (section 51(2)(c)).
  69. A Regional court can only deviate from the prescribed minimum sentences in respect of Parts II, III and IV of Schedule 2 where the court finds that "substantial and compelling circumstances" exist justifying the imposition of a lesser sentence (section 51(3)(a)).
  70. The increased jurisdiction granted to the regional court under the Minimum Sentences Act requires the regional court to impose medium to long-term imprisonment upon accused convicted of any of the offences listed in Parts II, III and IV of the Schedule to the Act, unless the law permits otherwise.
  71. The imposition of such a sentence upon any accused subject to the Act will undoubtedly have a severe impact upon that accused's life, liberty and dignity.
  72. Conversely, Parliament has decided that it is necessary to prescribe severe penalties upon persons convicted of offences listed in Schedule 2 to the Act, especially Parts II and III.
  73. Parliament, as the elected representatives of the people of South Africa, is acting fully within its powers in doing so.
  74. In granting the regional court the power to impose the prescribed minimum sentences in terms of the Act it has vested tremendous responsibility in the regional court and its bench.
  75. That responsibility extends to correctly convicting offenders as well as deviating from the prescribed minimum sentences only in appropriate cases and the where law permits it.
  76. If presiding officers do not carry out this responsibility properly public trust in the judiciary will be undermined. This is a consequence South Africa cannot afford at this time.
  77. Obviously, from time to time, presiding officers will err (they are, after all, only human) and the appeal courts will have to correct those errors.
  78. Because it is difficult to remove a judicial officer from office once appointed - due to the security of tenure requirements of judicial independence - every candidate for judicial office must be carefully chosen.
  79. The higher the level and importance of the responsibility vested in the court in which the person will preside the more stringent must be the appointment requirements.
  80. In addition to being a "fit and proper person" the prospective appointee (candidate) must have the necessary legal knowledge and experience to carry out the responsibilities of the office to which he or she may be appointed competently at the time of appointment.
  81. A substantial (if not major) portion of the matters tried before the regional courts are matters falling under the Minimum Sentences Act.
  82. In addition to dealing with the application of the Minimum Sentences Act, regional courts deal with legal questions, such as the potential exclusion of evidence obtained in violation of the fundamental rights provisions of the Constitution, on a regular basic.
  83. It follows that a higher level of legal knowledge required for the regional court than for the magistrate's court exercising criminal jurisdiction.
  84. Furthermore a higher proportion of cases tried in the regional courts are defended by duly admitted legal representatives. In minimum sentencing cases almost all are defended.
  85. It would be highly undesirable if the presiding officer were less qualified than the parties appearing before the court!
  86. To propose that magistrates and regional magistrates have the same legal training is similar to proposing that a general medical practitioner have the same medical training as a specialist medical practitioner, such as a heart surgeon.
  87. No patient, we submit, would be happy with a general practitioner carrying out a heart transplant, although the general practitioner may be quite competent to undertake the work normally undertaken by a general practitioner!
  88. The requirement of a distinct and higher level of legal knowledge (and a longer period of appropriate experience) for appointment to the regional court bench is therefore fully justified in our view, and should remain unchanged!
  89. MINIMUM QUALIFICATIONS IN OTHER COMMON LAW JURISDICTIONS

  90. The minimum qualifications necessary to be appointed as a judicial officer in the subordinate/lower or inferior (as opposed to the superior) courts of several common law jurisdictions were considered in order to discern what minimum qualifications prevailed in those jurisdictions.
  91. It is significant that there is a common minimum qualification in respect of superior court judges in almost all common law jurisdictions: a period of practice (usually five (5) to ten (10) years as a barrister (advocate) or solicitor (attorney).
  92. The qualifications in certain of the states in Australia, certain of the provinces of Canada and in India were examined in respect of those courts exercising similar jurisdiction to the regional courts in South Africa.
  93. INDIA

  94. The Supreme Court of India in the All India Judges' Association v Union of India, supra at page 2506, held that all States of the Union should prescribe three years practice as a lawyer as one of the essential qualifications for recruitment as the judicial officer at the lowest rank (i.e., an entry level judicial officer).
  95. The equivalent rank in South Africa would be the magistrate of a district court.
  96. Section 233(2) of the Constitution of India provides that "no person is eligible to be appointed as District Judge unless he has an advocate or a pleader for no less than seven years, while articles 217(2)(b) and 124(3)(b) require at least ten years' practice as an advocate of the High Court for the appointment of a person to the posts of the Judge of the High Court and the Judge of the Supreme Court, respectively".
  97. A District Judge would be the approximate equivalent in rank (in terms of sentence and offence jurisdiction) to the regional magistrates in South Africa.
  98. CANADA

  99. In Canada the subordinate/lower courts are a provincial competence in terms of their federal constitutional dispensation.
  100. Each province has its own legislation dealing with the provincial courts (the approximate equivalent of the regional courts) and the judicial officers presiding in them. These judicial officers are termed provincial or territorial court judges.
  101. Above the provincial courts are the superior courts of each province and below them are lay justices of the peace who deal with petty offences.
  102. The jurisdiction of the Provincial Courts is in some respects less than that of our regional courts. They may not try murder matters, for instance.
  103. ONTARIO

  104. In Ontario provincial court judges are appointed by "[t]he Lieutenant Governor in Council, [equivalent of the Head of State], on the recommendation of the Attorney-General [Minister of Justice]" under the section 42(1) Courts of Justice Act Revised Statutes of Ontario, 1990, Chapter C.43.
  105. However, under section 43(11) of the Court of Justice Act "[t]he Attorney-General shall recommend to the Lieutenant Governor in Council for appointment to fill a judicial vacancy only a candidate who has been recommended for that vacancy by the [Judicial Appointments Advisory] Committee under this section."
  106. The advisory committee constituted under sections 43(2) to (7) has as its function "to make recommendations to the Attorney-General for the appointment of provincial judges" (section 43(8)).
  107. A specific procedure for performing its function is provided for in section 43(9).
  108. Section 42(2) provides:
  109. "No person shall be appointed as a provincial judge unless he or she has been a member of the bar of the provinces or territories of Canada for at least ten years or, for an aggregate of at least ten years, has been a member of such a bar or served as a judge anywhere in Canada after being a member of such a bar."

    NEW BRUNSWICK

  110. In New Brunswick provincial court judges are appointed under the Provincial Court Act (Chapter P.21).
  111. Under section 2(1) of the Act "[t]he Lieutenant-Governor in Council may appoint one or more persons to be judges of the court."
  112. Section 3 provides:
  113. "No person is eligible to be appointed a judge of the court unless the person is a barrister and solicitor of The Court of Queen's Bench of New Brunswick and The Court of Appeal of New Brunswick and has been a member of the bar of a Province of Canada for at least ten years immediately preceding the date of the appointment."

  114. The jurisdiction of a provincial judge is dealt with under section 8 of the
  115. Act.

  116. Section 8(1) provides:
  117. "Each judge is hereby constituted a court of record and, throughout the Province, has all the powers, authority, criminal jurisdiction and quasi-criminal jurisdiction vested in a police magistrate or in two or more justices of the peace sitting and acting together, under any law or statute in force in the Province, and the powers, authority or jurisdiction are not affected by the place where an offence is committed or an act occurs."

    AUSTRALIA

  118. In the Commonwealth of Australia each component state has its own constitution and statutes governing both superior and inferior courts in the particular state.
  119. Most states have a system of superior and at least one level of subordinate/lower courts.
  120. In the larger states there exists an intermediate court, the District Court. Below the District Courts are the magistrates' courts that have less jurisdiction than our magistrates' courts.
  121. The District Courts of the various states have approximately the same or less criminal jurisdiction than that of the regional courts in South Africa.
  122. NEW SOUTH WALES

  123. The District Court Act 1973 (No. 9) regulates the district courts in New South Wales (the one referred to is updated to 3 April 2000).
  124. Section 166(1) provides that "[t]he Court has the criminal jurisdiction conferred or imposed on it by or under this Act, the Criminal Procedure Act and any other Act."
  125. Section 13(1) provides:
  126. "The Governor may, by commission under the public seal of the State, appoint as a Judge [of the District Court] a Magistrate, or a legal practitioner of at least 7 years' standing."

    QUEENSLAND

  127. In Queensland the District Courts Act, 1967 (including amendments up to Act No. 20 of 1998) regulate the district courts.
  128. Section 60 and 61 regulate the criminal jurisdiction of the District Court.
  129. Section 60 provides that "[a] District Court shall have jurisdiction to [try] … all indictable offences "with the exception of "any indictable offence in respect of which the maximum term of imprisonment which may be imposed exceeds 14 years" (Section 61(1)).
  130. Section 61(2) grants jurisdiction to "try a person charged with committing or counselling or procuring the commission of [certain statutory offences] defined in the Criminal Code, …, whether or not the maximum term of imprisonment which may be imposed in respect thereof exceeds 14 years."
  131. Section 9 provides:
  132. "The Governor in Council may, by commission in Her Majesty's name, appoint judges of District Courts, each of whom shall be a barrister or solicitor of the Supreme Court of Queensland of not less than 5 years standing."

    SOUTH AUSTRALIA

  133. The District Court Act, 1991 (including all amendments to October 1999) regulates the district courts in South Australia.
  134. Section 9(1) provides that "[t]he Court has jurisdiction to try a charge of any offence except treason or murder, or a conspiracy or attempt to commit, or assault with intent to commit, either of those offences".
  135. Section 12(1) provides that "[a]ppointments to judicial office in the Court are made by the Governor" and section 12(2)(a) states that "a person is not eligible for appointment as a judge unless that person is a legal practitioner of at least 7 years' standing."
  136. Section 12(5) provides that "[f]or the purpose of determining whether a legal practitioner has the standing necessary for appointment to a particular judicial office, periods of legal practice and (where relevant) judicial service within and outside the State will be taken into account".
  137. WESTERN AUSTRALIA

  138. The District Court of Western Australia Act, 1969 regulates the district courts in Western Australia.
  139. In terms of section 10(1) of the Act "[t]he Governor may, by commission in Her Majesty's name, appoint as many persons as are needed for the due administration of this Act to be District Court Judges".
  140. Section 10(2) provides:
  141. "A person shall not be appointed a District Court Judge unless:

    1. he is or has been a barrister or solicitor of the Supreme Court of not less than 8 years' standing and practice; or
    2. he is a practising barrister of the High Court of Australia of not less than 8 years' standing."

    INTERNATIONAL STANDARDS

  142. Article 10 of the United Nations Basic Principles on the Independence of the Judiciary provides:
  143. "Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement that a candidate for judicial office must be a nation of country concerned shall not be considered discriminatory."

  144. Article 9 of the Draft Universal Declaration on the Independence of Justice ("Siracusa Declaration") provides that "[c]andidates chosen for judicial office shall be individuals of integrity and ability. They shall have equality of access to judicial office; except in case of lay judges, they should be well trained in the law".
  145. Article 3 of the Draft Principles on the independence of the Judiciary ("Siracusa Principles") provides that "[a]pplicants for judicial office should be individuals of integrity and ability, well-trained in the law and its application."
  146. LEGISLATIVE HISTORY OF SECTION 9 OF THE MAGISTRATES' COURTS ACT 1944

  147. Prior to its amendment in 1965 section 9 provided that a person could not be appointed as a magistrate of a regional division "unless he has obtained … the degree of Bachelor of Laws from any university in the Union or has passed the Civil Service Higher Law Examination … and has served as a magistrate, additional magistrate or assistant magistrate for not less than ten years".
  148. In 1965 the requirement of ten years service as a magistrate, additional magistrate or assistant magistrate was deleted from the Act.
  149. In its stead a Regional Divisions Appointments Advisory Board ("the Board") was established under the newly inserted section 9bis.
  150. The Board had to inform the Minister whether a particular candidate was "suitable for appointment as a magistrate of a regional division".
  151. Initially the Board comprised public servants, attorneys-general and chief magistrates. Over the years the composition was altered.
  152. Immediately prior to its disestablishment in 1998 it comprised a number of public servants, the presidents of the various regional divisions and the head of Justice College.
  153. After the disestablishment of the Board in 1998 its function was taken over by the newly reconstituted Magistrates Commission.
  154. In practice committees of the Commission performed this function. These committees were established individually for each province.
  155. Most of these committees determined that seven years experience in the administration of justice was the minimum required for a person to be suitable for appointment as a regional magistrate. Thos is in addition to their possessing the degree of Bachelor of Laws and being a "fit and proper person" for appointment.
  156. MILITARY COURTS

  157. The composition and jurisdiction of the different military courts are provided for in the Military Discipline Supplementary Measures Act, 1999 (Act 16 of 1999) ("the Military Discipline Act").
  158. The Military Discipline Act creates two levels of military courts that are relevant for present purposes, the court of a senior military judge and the court of a military judge.
  159. A senior military judge must be "an officer of a rank not below that of colonel or its equivalent and with not less than five years experience as a practising advocate or attorney of the High Court of South Africa, or five years experience in the administration of criminal justice or military justice". The court of a senior military judge may "try any person subject to the [Military Discipline] Code for any offence other than murder, treason, rape or culpable homicide committed within the Republic and may on conviction sentence offender to any punishment referred to in section 12", which includes imprisonment.
  160. A military judge must be "an officer of not less than field rank and with not less than three years experience as a practising advocate or attorney of the High Court of South Africa or three years experience in the administration of criminal justice or military justice". A court of a military judge may try persons subject to the Military Discipline Code of a rank less than field rank for offences other than murder, treason, rape or culpable homicide or the two most serious offences under the Military Discipline Code (mutiny and desertion in time of war). Such a court may sentence an offender to "any punishment referred to in section 12, subject to a maximum sentence of imprisonment for a period of two years".
  161. Every sentence of imprisonment, including a suspended sentence of imprisonment is subject to automatic review by the Court of Military Appeals under Chapter 6 of the Military Discipline Act. The composition of the two different types of courts of Military Appeals is provided for in section 7 of the Military Discipline Act.
  162. ARMSA'S PROPOSED MINIMUM QUALIFICATIONS FOR APPOINTMENT AS MAGISTRATE AND REGIONAL MAGISTRATE

    MAGISTRATE

  163. In the case of appointment as magistrate, the minimum prescribed period of experience should be five years experience in the administration of justice.
  164. Such experience could include of experience as a practicing attorney, experience serving articles of clerkship and experience as a prosecutor in a criminal court.
  165. We would favour the retention of the requirement that a candidate also possess the public service lower law qualification.
  166. REGIONAL MAGISTRATE

  167. In the light of the foregoing ARMSA would like to make the following tentative proposal in regard to the minimum qualifications that should be prescribed in the Magistrates' Courts Act for appointment as magistrate and regional magistrate.
  168. This is not an attempt on our part to many way be prescriptive but rather to assist the Committee, in whatever way possible, to reach a final decision on this matter.
  169. In the case of appointment to the regional court the requirement that the candidate has passed all the requirements of the Bachelor of Laws degree ought to be retained both in respect of appointments in a permanent and acting capacity.
  170. In addition a minimum level of experience in the administration of justice for an aggregate period of at least seven (7) years should be prescribed.
  171. In determining whether a particular candidate meets the minimum level of experience the following should be taken into consideration (where applicable):
    • Periods in practice as an attorney or advocate of the High Court of South Africa;
    • Periods served in the office of magistrate or additional magistrate;
    • Period where the candidate has acted in the office of regional magistrate;
    • Periods served as an articled clerk in terms of the Attorneys Act;
    • Periods served as a prosecutor in the magistrates and regional courts.
  1. We believe that only persons with the type of experience mentioned above will enable the regional bench to be properly competent and to maintain the confidence of the litigants appearing before the court and of the public in general.

GRAHAM TRAVERS

CHAIRPERSON: JUDICIAL INDEPENDENCE COMMITTEE:

ASSOCIATION OF REGIONAL MAGISTRATES OF SOUTH AFRICA

15 FEBRUARY 2001

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