Judicial Officers Amendment Bill: Summary of Submsissions

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Justice and Correctional Services

03 March 2002
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
4 March 2002
JUDICIAL OFFICERS AMENDMENT BILL: SUMMARY OF SUBMISSIONS

Chairperson:
Adv. J.H. de Lange

Relevant Documents:
Committee Programme
Summary of Submissions on the Judicial Officers Amendment Bill
Judicial Officers Amendment Bill - Working Draft
Judicial Officers Amendment Bill [B72-2001]

SUMMARY
Morning session:
The Committee considered the Department's summary of submissions for Clauses 1, 2, and 22 of the Judicial Officers Amendment Bill. The Committee decided that Section 9 (1)(b) be retained until the Constitutional Court judgement on the Southwood case. Section 9(3) and (4) also needs re-evaluation. It was decided that the Regulations need to be revised in order to build a procedure whereby the Minister, who receives the names of candidates, can send them back should he feel that the candidates are unsuitable, in the same fashion as the Constitutional Court Judges appointments are made. Thus the Magistrates Commission must determine who is competent, but the Minister retains the ultimate decision of appointment.

Afternoon session:
The following matters arose from the deliberations on Clause 2:
- the appointments mechanism was discussed generally;
- considerations of the development and transformation of the judiciary in making such
appointments; and
- the relationship between the Minister of Justice and Constitutional Affairs and the Magistrates Commission.

It was noted that Clauses 3-5 have been repealed, and the definition of "judge" in these Clauses was discussed.

The discussion on Clause 6 and its submissions highlighted the following concerns:
- the composition of the Independent Commission for the Remuneration of Public Office-bearers;
- the varying salary brackets of members of the judiciary.


MINUTES
The Chair stated that the Bill is an enormously important piece of legislation because it deals with major issues of principle. He noted that last year, certain aspects of the Bill had been dealt with but when the Judge's Remuneration and Conditions of Employment Bill was rewritten, further public comment had been received, together with comments relating to the Judicial Officers Amendment Bill

Summary of submissions on Judicial Officers Amendment Bill
The procedure the Committee followed for this meeting was to read each summarised submission (see Summary of Submissions) in conjunction with the applicable section of the Bill and allow the Committee to comment after each one.

Commenting on Clauses 1, 2, and 22, the Chair remarked that it was inappropriate at this stage to change the requirements of these clauses. He stated that basically the Committee was trying to do the same thing as it had done with the judges' test of "fit and proper". It is inappropriate for one magistrate to decide whether another is fit and proper and to dictate the selection process. The Chair's vision was that in the future there would be one single judiciary, with a new commission which is developed to deal with the process of selecting magistrates. He mentioned the Southwood judgment which is soon to be handed down by the Constitutional Court, and which would impact on certain aspects of this Bill. The Chair warned that for the Department to act on the basis of that judgment without this amending Act in place, is ill-advised.

Mr. Jeffrey (ANC) said it would be prudent for the Committee to await the Southwood judgment before it dealt with aspects of the Judicial Officers Amendment Bill. He believed it would be a waste of time to deal with ALL the issues before the Committee, as the Southwood judgment would in any event influence the drafting of the Judicial Officers Amendment Bill. He suggested that those aspects of the Bill which would not be influenced by the court's decision should be considered instead.

The Chair agreed that that would be the correct approach to the deliberations, as there were other areas which could be dealt with. The Committee then considered the Summary of Submissions document:

Clauses 1, 2, and 22 Amendments to bring the appointment requirements of magistrates into line with those relating to judges:
Submission 1.1 No comment.

Submission 1.2.1 The Chair noted that there were mixed feelings about the deletion of the LLB degree requirement.

Submission 1.2.2 The Chair stated that to deal with magistrates on the basis of their experience is not necessarily a good idea, as a magistrate with 50 years' experience might not make a good Regional Court magistrate. It depends on the person's disposition and the type of work they have done in the past which shapes whether a magistrate is cut out for the job. He did not think it advisable to create an enormous distinction between magistrates and Regional Court magistrates and to write requirements of this distinction into the Act. He pointed out that this is one of the issues which will stand over until the Southwood judgement is handed down.

Submission 1.2.3 Mr. De Lange, the drafter, said he did not see why there is the need for only an advocate or attorney to be considered as a candidate. The Chair replied that they must decide what is fit and proper, as in practice a fit and proper person is usually somebody with a degree. He stated that academics too could be appointed for the post of magistrate.

Submission 1.3. Mr. De Lange noted that this issue deals with the Southwood judgment and should stand over until that judgment is handed down.

Submission 1.4 This issue also deals with the Southwood judgment regarding which functionary should perform which task. The Chair added that in this country like others, the Minister of Justice plays a pivotal role in the selection process of judges. He said at the lower court level there would be utter chaos and nepotism would be rife if magistrates themselves were to appoint nominees for the position of temporary /acting or permanent magistrates.

Submission 1.5 No comment.

Submission 1.6. The Chair liked the idea that one creates a pool of information on the applicant which can be assessed objectively. He asked what the implications of this would be.

Mr. De Lange replied that there should be something written into the Magistrate's Court Act and therefore there is a need to re-visit the policy involved.

Ms. Chohan (ANC) indicated that when the Department of Justice had conducted interviews in the Western Cape region, they had requested evaluations of those acting magistrates. She suggested that it was difficult to obtain that information timeously.

The Chair stated that with judicial appointments, judges were only appointed once they had done an acting-judge stint, and that people who had not practiced would normally turn down the opportunity for an appointment. He stated that the chief motivating factor was money. Once prosecutors obtained five years' experience, they normally applied for a magistrate position. This poses a problem because you are presented not with somebody who wants to make a career out of being a magistrate, but rather by one who is very much motivated by the salary factor. The prosecuting authority is trying to strike a balance with the salary factor. This issue is something that cannot be put into legislation - it is a practice that must develop at the Magistrates Commission.

Submission 1.7. The Chair commented that this is one aspect in the Southwood judgement that could be upheld. If you do a job, you should get the applicable salary: for example, an acting judge should get the same remuneration as a judge. In the magistrates court there is a different procedure and this needs clarification.

Submission 1.8. No comment.

Submission 1.9. The Chair said the submission did not understand the point of S 9(1)(b).

Submission 1.10.1 to 1.10.4. These submissions were related to S 9(1) and the outcome of the Southwood matter; as a result the Committee flagged these provisions for future discussions.

Submission 1.10.5. The Chair commented that there is the need to bring both the Magistrates Courts Act, 1944 and the Magistrates Act, 1993 into line. He wondered why in the listed functions of the Magistrates Commission, the making of recommendations for the appointment of candidates is not included. All the Act says is that the minister might appoint magistrates. He believed that a lesson needed to be learnt from the way the Constitutional Court judges are appointed. If the President is not happy with the nominees, he can he send the list of names back for re-nomination. The question that arises is whether the minister can do that with magistrates? This aspect needed further investigation to ensure flexibility for creating transformation in an orderly, organized fashion.

Submission 1.10.6 The Chair asked how one defines "competent". Does a person with an LLB degree fit into the characteristic of being competent?

Mr. De Lange pointed out the difference between (3) and (4) of Section 9. Subsection (3) applies if somebody is absent, then you can fill that position. The Chair stated that Subsection (4) is wider, and that there is nothing stopping one from using this subsection to fill a position if somebody is absent. He asked what the procedure was in practice as he felt that the head office would not make an appointment.

Mr. De Lange replied that in Cape Town the procedure was that if a magistrate was absent, the Regional office needed to be informed of this and told who would be the acting magistrate in place of the magistrate.

Mr. Mzizi (IFP) stated that he does not have a problem with the way magistrates were appointed, but enquired whether there was a guideline for the manner in which remuneration is to be made to acting magistrates. He stated that the relieving magistrate only does remands and a problem arises when he does an actual trial.

The Chair stated that if you appoint an attorney to do, for example, five cases, you mention that he will get a certain amount of money. The Act says that any qualified fit and proper person can be appointed. Section 9 is flexible: an "acting" judge is part of the full staff complement whereas a "temporary" appointment is surplus and means replacing somebody who is absent when the staff complement is not full.

Ms. Chohan (ANC) pointed out that it seemed that consultation was important in respect of the budget allocated for remuneration of magistrates. She stated that one can have an acting magistrate and a temporary acting magistrate. There is the need to be specific about the period/term of appointment.

The Chair suggested that Mr. De Lange look into that aspect as it could lead to the abuse of 9(4) and thereby create a bigger establishment.

Submission 1.10.7. The Chair concluded that Section 9 (1)(b) be retained until the Constitutional Court judgement in Southwood is handed down. Section 9(3) and (4) needs re-evaluation There is a need to look at how to change these and possibly divide (4) into two further sections. There is a need to look at the Regulations to see if it is possible to build a procedure whereby the Minister, who receives the names of candidates, can send them back should he feel that the candidates are unsuitable, in the same fashion as the Constitutional Court Judges appointments are made. The Chair stated that the Minister had raised this precise issue with him. The Magistrates Commission must determine who is competent, but the Minister retains the ultimate decision of appointment.

Mr. De Lange, the drafter, suggested that the Constitutional Court procedure is quite different and unique and the procedure for appointing magistrates is very different.

On the question of appointments, the Chair stated that the Minister should make a decision. Therefore there is a need to rewrite the Act very clearly, so in future the list of all competent people is sent to the Minister and the Minister makes the ultimate decision on the appointment of magistrates.

Mr. De Lange stated that this issue needs to be discussed further. You cannot hire a magistrate and then dismiss him. There is no such thing as appointing a magistrate and saying to him that he is on probation, and that if he writes a good judgment he will be appointed. The only way of changing these wrong practices is by spelling it out clearly in the Act.

In reply to Ms. Chohan asking how appointments at the Judicial Services Commission are done, the Chair replied that in practice, the Minister may for example say to the Head of the Court, "please find suitable people for appointment, they should be female and Black". This forces the magistrate to look for specific candidates.

Mr. De Lange advised that there is a need to spell out the requirements to the secretary of the Magistrates Commission and ask him/her to explain how the appointment in terms of Clause 9(3) is done. Thereafter the procedure should be looked at and amended.

Mr. Masutha (ANC) enquired about the position of the candidates who are not appointed. Do they find alternative placements or fall out of the system altogether?

Ms. Chohan (ANC) replied that one can establish that they continue to act in the capacity of acting magistrates. There is no process whereby a cut-off takes place; they can apply for posts around the country.

Mr. De Lange noted that where you come from a prosecutor's background, although you do not resign and lose your job, you have gained certain experience. However when other acting posts become available, you can apply for those posts and thereby stay on the circuit as magistrate.

The bigger problem arises where one magistrate has the final view on recommendations about other magistrates without the individual's view being challenged. Stricter measures should be laid down for making appointments and the procedures in the Act should be clearly spelt out.

Afternoon session:
Clause 2 : Qualifications for appointment of judicial officers

Advocate M Masutha (ANC) referred to the appointments mechanism, and contended that the Minister of Justice has to be allowed sufficient scope and powers to effect the necessary transformation, within the South African judicial system, via the appointment of judicial officers. This has to be done without this committee expressly stating in this Bill the specific powers involved in this process. Furthermore, it has been agreed that the "appointments" referred to are not to be regarded as cases of employment in the traditional sense. Also, it is not certain whether the affirmative action legislation requires specific legislation or express wording within the relevant Acts that allow the Minister to implement affirmative action provisions.

The Chair replied that it seems as though every appointment the Minister makes in this regard must be in terms of the development and transformation of the judiciary as directed by the Constitution, and these values and considerations are thus inherent in any such decision. This could, however, be achieved in two separate ways:
- the Minister could make such appointments in accordance with express wording in the relevant legislation, or
- this committee could establish a mechanism allowing the Minister to execute this function. This could take the form of the names of the applicants recommended by the Judicial Service Commission being forwarded to the Minister, who could send the list of applicants back to the Commission and request additional names to be added, to reflect development and transformation.

Mr J De Lange, the drafter, was instructed to formulate such a mechanism, following consultation with magistrates. Feedback on this matter is expected in the near future.

The problem is that the current formulation seems to have the Minister acting on the advice of the Commission, which is unacceptable. Under the former Minister of Justice, Minister Omar had a pool of applicants from which he could make the appointments, whereas in the current dispensation only the first and second choices are recommended by the Commission and supplied to Minister Maduna for selection. Thus a provision will have to be inserted in the Judicial Services Commission Act that requires the Commission to promote the development and transformation of the judiciary when recommending these appointments.

Adv Masutha suggested that such an amendment is particularly important so that that Act does not provide the basis for any form of unfair discrimination listed in Section 9 of the Constitution. The Chair agreed with him.

Clauses 3-5
The Chair noted that Clauses 3 to 5 have been repealed because of the introduction of Clause 29 in the Working Draft. Mr De Lange was asked if those judicial officers beyond the age of 70 are still considered "judge[s]" in this regard and he said they were.

The Chair expressed his confusion at the precise definition of the term "judge" under this Bill.

Mr De Lange replied that the definitions referred to in this Bill correspond with the section 1 of the Judges Remuneration Act 88 of 1989. It is recommended that the same be done for the Judicial Services Commission Act.

The Chair flagged this issue as the Judges Remuneration Act only defines the term "judge" in terms of a Constitutional Court judge, whereas the Bill refers only to the various judges functioning within the Republic.

Mr De Lange responded that the "complaints mechanism" section will contain its own definition, as provided in the proposed Clause 18(d) in the Working Draft of the Bill. This definition does, however, only relate to Chapter 5 of the Bill.

The Chair informed Mr De Lange that that definition "is not good enough", because the Judges Remuneration Act had been passed before this Act, and conflicting provisions have to be avoided. This issue therefore has to be revisited at a later stage.

Clause 6 : Remuneration of judges
The Chair stated that Subclause 2(1) should be rejected, and the "allowance" referred to in that subclause has to be removed as well. Thus South African judges would henceforth only acquire "a monthly salary and an annual allowance" under Subclause 2(1), but the latter would not be at the rate proposed. Mr De Lange was asked the reason for the inclusion of an allowance in the first place.

Mr De Lange explained that the Constitution insists upon this remuneration, because during one year after 1993 South African judges did not receive a salary and the Minister of Justice, Minister Coetzee, introduced these non-taxable allowances as a compromise. Section 176(3) of the Constitution stated that these salaries and allowances may not be reduced, with the result that it has been retained ever since.

The Chair instructed Mr De Lange to take the phrase in bold in Subclause 2(1) and place it at the end of the sentence. This would mean that the rate can never be increased, except via an act of Parliament.

Mr De Lange stated that this has already been done by section 2(1) of the new Act.

The Chair agreed, but insisted on the retention of the reference to "subsection 7" in Clause 6(2)(1) on page 4 of the Bill.

The Chair then considered the submissions in the Summary of Submissions dealing with Clause 6 of the Bill:

Submission 2.2.1
The Chair called for this submission to be ignored, as the Act actually clearly defines the term "active service", and it also includes "any other continuous period of longer than 29 days", which clearly does not just limit it to 29 days.

Submission 2.2.2
The Chair called for this submission to be ignored.

Submission 2.2.3
The Chair requested clarity from Mr De Lange on this submission.

Mr De Lange replied that the precise meaning is not readily apparent, but it seems to be referring to the previous dispensation, and that the exact content of the package has to be "spelt out". This submission is, however, lacking any significant substance.

The Chair consequently called for it to be ignored.

Submissions 2.2.4 - 2.3.1
The Chair called for these submissions to be ignored.

Submission 2.3.2
Mr J Jeffery (ANC) stated that the Independent Commission for the Remuneration of Public Office-bearers would have a problem with judges changing their own salaries, and it is argued that the inclusion of judges here would be troublesome. It also creates a further problem with drawing the line with regards to the encroachment of other professionals into this body.

The Chair suggested that either the current framework be maintained, or this committee introduces a new structure here, one similar to the model proposed by the previous Minister of Justice.

Mr Jeffery contended that the problem created here is that, as far as budgetary constraints are concerned, the increase in judges' salaries has to be included and accommodated, and this is essentially an executive decision. Conflict would be created should the Commission prescribe an increase in judges' salaries, but the budget of the Department does not allow for such unplanned expenditure. For this reason this power should not be taken out of the hands of the executive, as this would relegate it to a recommendatory body, and this negates the very purpose of an independent Commission.

The Chair agreed, and added that if this were allowed, other professions would request a seat on that body.

Mr Jeffery inquired whether there is any international precedent on this matter.

The Chair informed him that the research conducted by the magistrates provided that Canada has such a commission, but the establishment of this commission is a very recent development, globally. It falls primarily within the jurisdiction of the executive, except the United States of America, that has a completely separate budget for the entire judicial arm of government.

Mr De Lange agreed, and added that the Canadian model includes a review process in a 3 year cycle. The problem currently facing the Department is that is does not want to engage in negotiations with the judiciary on this matter, and therefore wants to delegate this power to an independent body.

The Chair stated that this body is actually a falsity, as once this body has agreed to increase the salary or remuneration of the judge and has submitted this recommendation to the State President, the latter could still disagree with the recommendations of the Commission. The result is that if the power to make such recommendations is taken from the Department and delegated to this Independent Commission, the result would be the same.

Mr De Lange agreed, but contended that the Department has not conducted any objective research on this matter, as only the independent body would have the resources to do this.

The Chair said that the problem here is that state law advisors, prosecutors etc. are moving from one wholly insufficient salary notch to the salary paid to a magistrate, and it has been proposed that the annual salary of the Deputy National Director of Public Prosecutions now be doubled to that of R680 000. The Department is thus losing its internal unity, and this Committee recognises that this cannot be attributed to the Department. This issue will be discussed in great detail on Wednesday 6 March 2002 when the Department submits a report to this Committee detailing the salaries payable to the various judicial officers in South Africa, as well as any salary increases since 1994.

Mr Jeffery questioned the decision to implement this via legislation, as there does not seem to be anything preventing President Mbeki from setting up a commission to compile a report on this, which would be forwarded to Cabinet and the State President. It is suggested that this route be implemented for a defined period, and if it does not perform according to expectations, it should be implemented via legislation.

Mr De Lange replied that the task group that has been established to address this issue is not a permanent body, but is rather an adhoc committee. Thus this Portfolio Committee is perfectly suited to implement these provisions in the ordinary course of business.

Mr Jeffery contended that these two bodies are two entirely different setups.

Ms F Chohan (ANC) questioned the need for the two to be somehow related, because it links the executive, the judiciary and the legislature, which encompasses the entire government of South Africa. Therefore, if the two are treated as separate entities this would merely serve to exacerbate the differences between them. It is suggested that this committee either approve and entrench this particular Commission, or "it has to say no to all other commissions".

The Chair stated that he agreed with Ms Chohan insofar as it refers to "judges" alone, but the accuracy and legitimacy of her proposal in terms of magistrates is uncertain. Currently all public representatives of government, together with traditional leaders may now be represented on the Commission, and the proposed addition of judges as well would not be well received.

Mr Jeffery agreed with Ms Chohan with regard to her statement concerning the three tiers of government, and checks and balances are thus needed here.

The Chair agreed with these valid concerns.

Mr De Lange informed members that provision has been made for the establishment of a subcommittee here, who would have the necessary authority to make decisions regarding the salaries of judicial officers. A Magistrates Commission is needed here.

Mr Jeffery stated that the Magistrates Commission would review the nature of the work done by the public representatives, probably on a 5-yearly basis, and would also prescribe possible changes that need to be effected to increase efficiency and productivity of these officials.

The Chair informed members that they could "expect a surprise" in the March 6th meeting of this committee, as the Department has been requested to brief this committee on all the salary brackets and salary increases of South African judicial officers since 1994. A recent study has revealed that in 1994 the Chief Justice of the Supreme Court of Appeal received an annual salary of R314 000. He presently earns R565 000, which marks a R125 000 increase over only a 7 year period. This figure is made even more astounding if one remembers that judges do not contribute towards any sort of pension fund, they only pay medical aid which is deducted at the end of every fiscal year, and Pay As You Earn (PAYE) tax is also deducted at the end of the same period. The result is that after serving for a period of 15 years and receiving their annual salaries and allowance, judges would essentially receive R1,5m tax free. They are also entitled to receive the full salary of the last position held before retiring, which in the case of a Chief Justice would mount to R565 000 for the rest of his/her life. Furthermore, the state will also install an alarm system for the judge's home, at the state's expense.

All this will be cleared up with the Department on Wednesday 6th March 2002.

The Chair directed members' attention to the remainder of the proposed amendments to Clause 6 of the Bill.

Mr De Lange informed the committee that the reference to "one year' in the proposed Clause 6(2) in the Working Draft is identical to the corresponding provision in the Judges Remuneration and Conditions of Employment Act of 1989.

The Committee agreed with the amendment

The Chair questioned the deletion of Clause 6(3) of the Bill.

Mr De Lange responded that this same provision is actually retained in the new Act.

The Chair instructed Mr De Lange to retain this clause, as "it is important that Parliament sees it".

Mr De Lange informed the committee that he did not have a problem with the provision, and it is present in several pieces of legislation. Yet the precise meaning or the intended purpose of the provision is not entirely clear.

The Chair replied that it actually serves as a "safe-keeping" for judicial officers who might feel that Parliament is not doing enough to protect their interests. This provision allows them to address this grievance.

Mr De Lange informed the committee that Clause 6(7) has been inserted in this Bill, and is almost an exact replica of a similar provision in the new Act.

The Chair stated that this provision would be problematic, because it provides that salaries, benefits and allowances are to be dealt with by the President, whereas the new Act stipulates that these powers do not fall within the jurisdiction of President Mbeki. The current formulation of the provision would thus create unnecessary tension in this regard. Rather, the proposed Subclause 7 should correspond with Clause 6(1), which provides that the President alone may exercise this function.

Mr De Lange stated that this matter has been discussed before, and a strong argument has been made for the retention of the "one year" period here.

The Chair contended that it would only be considered unconstitutional if the salaries of these judges were to be reduced, but it seems that this would never be the case.

There were no further questions or comments and the Chair adjourned the meeting.

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