Judges and Magistrates Remuneration Determination; Sheriffs Amendment Bill: briefing

Meeting report

Determination of Remuneration for Judges and Magistrates: briefing
The Commission on Remuneration of Public Office Bearers had recommended a 5.5% salary increase for all judges and magistrates across the board. Deputy Chief State Law Adviser, Adv Jacob Skosana, explained that this was the result of a laborious exercise comprising of consultation, discussion with experts, analysis, looking at the GDP, inflation, the fiscus, and the impact of any increase on any person. As a result of this, the Commission had advised the President who took this advice, applied his mind to the increase and gave his approval. There had been no concerns or objects raised by the judges, and therefore the 5.5% could be approved by the Committee without any hassle, and the Department could put into motion the process required to implement this. However, the Committee had received a document with respect to the magistrates.  Salaries did not include benefits, such as cars, resettlement allowances and so on. There were no concerns or criticisms, so if the Committee could approve the proposal the Department could move forward. 

Mr D Joseph (DA, Western Cape) asked if this had been submitted to the National Assembly and if it was approved.

Mr Skosana replied that it was being presented to them that day.

Mr J Gunda (ID, Northern Cape) said that the Committee could do nothing about this issue and that it had already been decided. He had a number of concerns that he wished to bring to the attention of the Committee. If a judge or magistrate had to travel for work, their reimbursement was different to that of an MP. He asked why that was the case when judges and magistrates already paid less tax than Members of Parliament. MPs were taxed 40% while for judges it was only about 28%. It was a big concern and one that he felt the Committee should take further. He felt that there was nothing the Committee could do about this and that they did not have any choice but to approve the recommendation. 

Mr D Bloem (Cope, Free State) shared Mr Gunda’s sentiments. He said there must be another approach. He felt that the Committee was becoming a rubber stamp for decisions that had already been made. Before things were approved by the President, they should first get Parliament’s approval. He added that the salary of some mayors was more than he was paid, even though Councillors in local government were not working the long hours that MPs were. The Committee should be part and parcel of deciding on the salaries. The judge and his Commission should come to the Committee so that these issues could be interrogated. He also felt that there was nothing that the Committee could do now.  

Mr A Matila (ANC, Gauteng) agreed with what had been said. He argued that they were not being presented with a true reflection of what the judges and magistrates were earning as their benefits were not included in the figures.  Their salaries were therefore much higher than the numbers being discussed. For all other public representatives added benefits were included in the package. If the Committee passed these salaries it should do so while noting its concern that there were hidden incomes involved. The Commission was led by a judge and therefore was not impartial. 

Mr L Nzimande (ANC, Kwazulu-Natal) said that this was not a review of the remuneration structure of public representatives, and the Committee should focus on the 5.5% increase that was being presented.  The Committee should not send the wrong message by ‘bashing’ the process, but should respect the independence of the Commission. Parliament was represented in the process and Members were giving the wrong impression by saying it was not. If Members had concerns with the structure, those concerns should be raised elsewhere, but for the purposes of this meeting the Committee should focus on the 5.5%, which had been tabled. If a total overhaul of the system was wanted then that was a separate concern. He proposed that the Committee approve the increase.

Mr Joseph suggested that the Committee deal with the increases for judges and for magistrates separately. A few days ago there had been a judgement which had ruled for the magistrates who had taken the Department to court because of their unhappiness with their remuneration.  He was unsure of the outcome but knew that the judgement had been made and that the remuneration board was currently considering the matter. He recommended that the Committee support the Department’s recommendation for the judges, but postpone the decision on the magistrates while this issue was being resolved.

The Chairperson asked Mr Joseph to consider the implications of not including magistrates.

Mr Joseph responded that the magistrates themselves had asked for this to be looked at, and that was why the advisory board was re-looking at the adjustment.

Mr Matila said that while he was not against approving the increase, he was concerned that there was not a single Member of Parliament; instead it was headed by a judge with a personal interest in the outcome.

The Chairperson urged the Committee to deal with the issue at hand. Some of the issues being raised should not be discussed in the meeting. He asked the Members to address the proposal made by Mr Joseph.

Mr Manzini supported Mr Joseph’s proposal.

Mr Nzimande re-emphasised that the recommendation as it stood suggested a 5.5% increase across the board. He did not know if the magistrates were questioning the process or the amount, or whether this was the view of the majority or just a small component. He stood by the proposal of 5.5%, and suggested that the MPs take their grievances to the appropriate place, and that the magistrates would do the same.

Mr Bloem suggested that the Committee second the proposal and approve the increase. However, he said that magistrates were facing proper grievances, and recommended that next time Parliament should be more involved in the process.

Mr Gunda agreed that the Committee should approve the proposal but with a strong recommendation. A lot of recommendations were made in meetings and were never implemented. The Government said that the gap in inequality should be closed but looking at these salaries it seemed that that would never happen in our lifetime. They needed to meet these people and ask them, as judges were getting these salaries for the rest of their lives.

The Chairperson interjected to say that these issues did not belong in the meeting.

Mr Gunda responded that the issues needed to be raised.

Mr Makhubela asked why two Committees were sitting simultaneously on this issue.

The Chairperson said that before a conclusion was reached, a letter should be discussed and asked the Committee how they should respond. The letter, from Ms Annalene Larsen, asked for consideration of the salaries, allowances and benefits payable to magistrates annually. The basic salary of magistrates stood at 60% of the package even though Senior Management Services (SMS) had theirs increased to 70%. Consideration should be given to giving magistrates the same benefit as given to SMS members. A pension fund for magistrates had not been implemented. This year and in past years the annual increase given to magistrates was less than that received by government employees. Larsen noted that there were prosecutors who earned more than magistrates, despite their senior position in court.

The Chairperson read aloud from the letter: “in light of the above, I respectfully submit that the notice and schedule cannot and should not be approved and that your Committee should recommend that it should not be approved by the NCOP. These issues have been dragging for some time and should be attended to instead of being postponed or delayed any further. The President of South Africa, His Excellency Mr Zuma and the Independent Commission for the Remuneration of Public Office Bearers (ICRPOB) should give consideration to the highlighted issues.”

The Chairperson said that industrial action was being considered by magistrates, and it would be unfortunate if magistrates had to take to the streets because nobody was willing to listen to them. In light of this, he suggested that the Committee approve the judges’ increase and leave the magistrates.

Mr Matila accused the Chairperson of saying that this matter was not relevant, and then reading this letter and thereby bringing the matter up again. He proposed that besides getting information from the letter, the Commission should come to the Committee and explain why they had made their recommendations. The Commission would be able to answer the questions being raised so that these problems could be dealt with. He proposed that the Committee not approve the judge’s salaries so that they could “suffer the same.” 

The Chairperson admonished him not to be emotional. 

Mr Skosana referred to the Act which stated the powers of Parliament on this issue. The power was not to rubber stamp but to approve. The remuneration of public office bearers was determined in terms of the Judges’ Remuneration and Conditions of Employment Act. This Act prescribed an independent process and did not give Parliament a role. The Act provided mechanisms specifying how it should be done. After consultation and investigation, a recommendation went to the President for approval. The process ended there.

It was only in respect to judicial officers that Parliament had a role. That role was not provided by the Judges’ Remuneration and Conditions of Employment Act but from the Magistrates Act. The Magistrates Act specified the role of Parliament and this included listening to people. It would be unfortunate for Parliament to decide on the Magistrates without listening to them when they had written to Parliament asking to be heard. Section 12 of the Act specified that if Parliament disapproved a notice then that notice would lapse to the extent to which it was disapproved. It would then be required of the President to issue another notice. Parliament therefore had an approval responsibility.  

Coming to the Judgement given that week on this issue (included in the documents provided at the meeting), the Department was appealing the judgement because they felt that this issue was an Executive function, not a judicial function. In this case the Commission had recommended 7%, and the President had approved 5.5%. The judgement said that the President did not apply his mind to the circumstances of magistrates, and did not consider their position, function and responsibilities. The issue should therefore be returned to the President for further consideration.

The Department was meeting with the Presidency to decide what to do next and whether to appeal, which would take a long time. He suggested that in view of the fact that there were people who had come and asked to be heard by Parliament, the Committee should separate magistrates from judges, approve the judges, and decide on the magistrates once they had consulted those who had asked to present themselves to the Committee.

Mr Manzini reiterated that those who had asked to present to the Committee should be given the opportunity.

Mr Nzimande said that the Committee did not have the power to determine remuneration, but only to approve it. Therefore deliberations like this were part of the approval process. The disapproval or the approval was not a solution to the complaint; the Committee was not empowered to deal with the determination. The Committee could only satisfy itself that people were given the opportunity to make submissions. 

Mr Gunda said that it was strange that in this country the prosecutors were being paid better than the magistrates. This issue needed to be addressed, and the Committee had to do this. Was it possible to meet with this Commission as he had a lot of questions to ask them? 

Mr Matila said that the Committee was in a difficult situation because they did not have to power to respond to these letters. He asked what was the purpose of misleading these people by inviting them to the Committee, listening to them, and then writing a recommendation that would never be implemented? There was nothing the Committee could do because it was dealt with between the Commission and the President. The Committee could only approve or disapprove. He asked why the Committee should strain itself for something it could not do anything about. He argued that embarrassment would come to government if a case was opened against it on these matters and it lost – because government did not receive proper advice. This was the case with a string of matters, such as the Protection of State Information Bill. Unless the Committee could intervene, what was the point in raising the expectations of the magistrates – when they could do nothing at the end of the day, except give a recommendation. The only result of this would be that people would think Parliament was useless because they could not intervene. The Portfolio Committee sitting on the same matter, confusion would come into play if they reached different conclusions. 

The Chairperson reminded the Committee that they had to reach a decision.

Mr Matila’s view was that the Committee should write to the people and advise them of the avenues they could follow.

The Chairperson urged Members to stick to the issues at hand.

Mr Matila said that the Chairperson had raised these issues by introducing the letter.

The Chairperson said that the letter could be dealt with after the increase had been approved.

Mr Matila responded that the Chairperson had recommended that the letter be dealt with before approval was decided on.

Mr Bloem said that even if the Committee could not do anything to change the situation, they had been voted in and sent to Parliament with the expectation that they would listen to the people. He therefore suggested that they approve the 5.5% for judges and not approve it for the magistrates. But also that they listen to the magistrates in order to move forward.

Mr Joseph clarified that he did not suggest that they disapprove the increase for the magistrates but that they postpone the decision. 

Mr Gunda pointed out that the postponement of the magistrates would have an effect on their salary. 

Mr Matila said that he had been persuaded to support approval for judges but to disapprove magistrates and to call them in for consultation. The Department should also come to explain the situation so that the Committee was informed and could then make a recommendation.

Mr Nzimande said that he would like to state for the record that, although this was clearly a minority view, he felt that the Committee should approve the magistrate wages. They did not have the benefit of knowing if this was a reflection of how all the magistrates felt, and yet it would affect all of them. They had no information aside from that provided by those who brought the issue to the Committee. He therefore stood by the Commission’s proposal. He argued that the 5.5% was not linked to the grievances about a salary gap and put forward that it should be approved along with the judges’ salary. He felt that the magistrates should be given a hearing and then recommend a separate process to try and mitigate their circumstances.

The Chairperson reiterated that that was the minority view. He proposed that the Committee approve the judges’ remuneration and did not approve the magistrates’, and that they speed up the process so that there was no further delay. This was agreed.

Sheriffs Amendment Bill: briefing
The civil justice system made use of sheriffs who are not paid by the state but by the people who used their services. The Sheriff or Deputy Sheriff must serve or execute all documents issued by our courts. These included summonses, notices, warrants and court orders. Mr Skosana introduced the key features of the Sheriffs’ Amendment Bill. The Bill sought to regulate the appointment of acting sheriffs; designate state employees to serve court processes in areas where a sheriff had not yet been appointed or was unable to serve; to take measures to advance the transformation of the sheriff’s sector; as well as strengthening institutional arrangements and governance; strengthening accountability; and risk management of the Fidelity Fund.

Mr Skosana introduced the background to the sheriff dispensation.  The Sheriffs Act of 1986 introduced a private sheriff dispensation in the place of messenger of court dispensation. In terms of the current dispensation, sheriffs were entrepreneurs who generated income from service and execution of court processes. The rules of court made by the Rules Board for Courts of Law subject to approval by the Minister determined the process and tariffs chargeable for sheriffs’ service. Transformation remained a challenge in the industry. Of the 234 sheriffs, 167 were White, and only 36 were women. Processes were underway to fill 247 vacant offices.

Black sheriffs served mostly the under developed and traditionally black areas and rural villages while most of their white counterparts worked in affluent suburbs, and commercial and industrious areas which were economically viable offices. Economically affluent areas attracted more sheriffs while underdeveloped areas in former black areas (township, former homelands and rural villages) struggled to attract applicants to this entrepreneurship. The consequences of this were disproportionate services informed by historical imbalances with dire consequences for access to justice, as the sheriffs service was the livewire or conveyer belt connecting various stages of the civil justice value chain.

Sheriffs served 384 magisterial districts country-wide, of which an estimated 15% constituted large generating income in excess of R4 million per annum. These were found in affluent cities and towns such as Sandton, Randburg, Pretoria, Cape Town, or Durban. An estimated 65% of districts were medium offices generating between R1 million and R3.9 million. An estimated 20% were small, economically non-viable offices generating less than R800 000 income, most of which were in desperate underdeveloped areas in the Eastern Cape, KwaZulu Natal and Limpopo. Of the 20% small, 6% were not serviceable, and so communities living in these areas were alienated from the civil justice system, while the other 14% struggled financially.

The Bill sought to rectify this through the designation of state employees to serve court processes (clause 6A). State employees (state sheriffs) would provide services where there were no sheriffs, in particular non-serviceable areas. In the main, state officials who may be eligible to be designated to serve court processes would be Maintenance Investigators and the Registrars of the Court due to their training and understanding of the civil work. Other persons who possessed the requisite skills may be appointed in deserving cases. The State sheriffs would not be able to execute any court order, but would serve only court processes, including summonses, protection orders and garnishing orders. For purposes of executing court orders in respect of areas where State sheriffs had been designated to serve court processes, the Court Manager of such court would appoint any other sheriff from a neighbouring district to execute the order.

The Bill also sought to strengthen the governance of the sheriffs’ profession (clause 6 which amended section 9). The Act provided for the appointment of the Board of Sheriff by the Minister to regulate the sheriffs’ profession. The composition in terms of the existing provision was a minimum of six and maximum of nine sheriffs; and a minimum of three and maximum of six non-sheriffs. The strong sheriffs representation resulted in the agenda of the Board being biased towards the interest of sheriffs. Therefore the Act contain a strong element of self-regulation

The Bill proposed the Board comprise of 11 members: five sheriffs from nominees made by associations; an attorney nominated by the Law Society of South Africa; a nominee of the National Credit Regulator; three fit and proper persons designated by the Minister, who would have the expertise needed to manage the funds, and would add skills and value from a human resources perspective; and an official of the department.

The appointment framework would be strengthened through the acting appointments (clause 3 of the Bill). The proposed amendment to section 5 sought to address the gap in the Act. At the time the Act limited the Minister to making acting appointments only where a sheriff was unable to perform his or her functions. It did not provide for acting appointments to be made in the case of a vacancy. There was therefore a need for acting appointments in instances of a vacancy, which had been caused by any reason.

Several progressive measures had been included to enhance access to the profession, including the objects of the Board (clause 8). The amendment provision was intended to provide for progressive measures, including programmes to assist previously disadvantaged communities to get access to the profession, through financial back-up, training on entrepreneurship and assisting potential applicants to access funding to start up a sheriffs practice.

Key transformation initiatives affecting sheriffs included the rationalisation and alignment of magisterial districts and the subdivision of large areas. In addition the Civil Justice Reform Programme, which Cabinet approved in May 2010, would result in the optimum use of technology such as e-filing to replace ancient outdated and at times ineffective methods of service of court process, and the execution against property including the regulation of auctioneers.

The Department had consulted extensively on this Bill with the sheriffs’ representatives, and the only point of controversy had been the composition of the Board, because Sheriffs had wanted to maintain the status quo, which was favourable to them. In all other matters they supported the Bill.

Mr Bloem commented that this was a complicated piece of legislation. He proposed that the Members be given further time to go through it on their own before it was presented.

Mr Matila said that the Members had been given a lot of information to go through and it was difficult for them to engage with the information if they did not get the documents in time. He appealed for a postponement of the presentation, saying that at the next meeting the Members would have been through the documentation and would be able to handle the technical aspects better. 

Mr Nzimande argued that the technical briefing should be included and that the Committee did not have time to postpone it. This was what the Committee was scheduled to do and so the Department must present. He did not see why the meeting should be postponed.

The Chairperson invited Mr Johan Labuschagne of the Department of Justice to present.

Mr Johan Labuschagne, Principal State Law Adviser from the DoJ&CD, began by explaining that the Bill sought to address major problems being experienced at the moment, but it was intended as an interim measure pending a comprehensive review of the Act. As far as the consultation process was concerned, the Department had consulted prior to the introduction of the Bill with all the bodies indicated in the Memorandum, had invited public comment and had had held public hearings. Sufficient consultation had therefore taken place.

Turning to the Bill itself, Mr Labuschagne ran through the amendments clause-by-clause (see document “Sheriffs Amendment Bill: as introduced in the National Assembly (proposed section 75); explanatory summary of Bill published in Government Gazette No. 34918 of 24 January 2012.”

The Chairperson thanked him for presentation, said that the Committee would meet again to engage with it, and adjourned the meeting.