Magistrates remuneration controversy: appeal by Lower Courts Remuneration Committee

Meeting report

The Chairperson opened the meeting by welcoming the Lower Courts Remuneration Committee delegation. He noted that the NCOP had taken a decision to reject the recommendation for a 5.5% increase for salaries paid to magistrates and that the portfolio Committee would seek to dissuade them from this stance. He asked for insight into discussion between the Lower Courts Remuneration Committee and the Chief Justice to aid in resolving the matter.

Mr Modibedi Djaje, Chairperson of the Lower Courts Remuneration Committee (LCRC), revealed that the meeting had not been between the LCRC and the Chief Justice but rather between individuals. There had been rumours of impending strikes. There was concern about where higher standing members of the LCRC aligned themselves. Although a statement had been issued that made it likely that a strike would occur, it was made clear that not all magistrates agreed with this decision. There was no provision in law saying that magistrates could go on strike, and it was therefore not guaranteed that a strike would even occur. The manner in which the Independent Commission (ICRPOB)  conducted negotiations with magistrates was also discussed. As the Chairperson of the Lower Courts Remuneration Committee, Mr Djaje said that he had an understanding that his Committee would be consulted when any issues regarding salaries arose. His Committee had expressed its dissatisfaction in the way that the ICRPOB had formed its decision. His major source of frustration was the lack of meaningful consultation before making a recommendation. This position had been expressed to the Chief Justice. He questioned whether a decision made by a body that had a duty to consult, but did not, could be considered legitimate.

Ms D Schafer (DA) asked for an explanation on how representative the Judicial Officers Association of South Africa (JOASA) was, given the influence they had over the NCOP’s decision. She also asked what the main areas of unhappiness were regarding the magistrates’ pay package. Finally she asked if magistrates would be content if the wage increase was approved by the Committee and the court case would be allowed to continue.

On the invitation from the NCOP to have JOASA present to them, Mr Djaje said that the LCRC had not been notified. The LCRC should have been invited as well. Unfortunately he was not in a position to reveal how many magistrates were represented by JOASA, but it would be the largest number out of all the representative bodies. When the Commission made recommendations, there needed to be proper consultation and this was the first main concern. The second problem was when increases were made across the board. This created tension because the salary gap between judges and lower court judiciary officers continued to grow. Many issues such as medical aid and tools of trade, were simply not being addressed. Only recently had magistrates been provided with laptops and 3G cards. These were the types of issues causing discontent.

The Chairperson accepted that it was an objective of magistrates to be considered as judges and to receive financial benefits to the same degree. This was part of a broader conversation that would echo throughout the legal community and society as a whole. The tabled issue was part of that conversation but more specific. The status quo meant that magistrates would receive no salary increase whatsoever for the following year. He understood that certain magistrates were paid less than certain prosecutors and he was unsure if the NCOP had been aware of this when taking its decision.

Mr Djaje said that the LCRC standpoint was not so extreme as to expect the same benefits or status as judges, all that was asked was for the salary gap to be reduced. He asked if it was not possible for the Committee to engage with the NCOP to effect the recommendation. He said that anything less than a 5% adjustment would be unfair.

The Chairperson expressed pleasure at this suggestion and agreed that it would be the preferable route.

Mr J Jeffery (ANC) said that the Judges had approached Parliament to make a representation and not the other way round, and that LCRC had not. It was important for salaries not to be determined by the people who earn them. The Independent Commission for the Remuneration of Public Office Bearers  which determined magistrate salaries was extending its ambit in that an upcoming Bill would give it the responsibility of making recommendations on Chapter 9 salaries. The Independent Commission recommendations might not always sit well with Members of Parliament, but its autonomy had to be respected or else it would lose its efficacy. There were areas that the Committee could look at, such as the manner in which a decision was taken. The final recommendation could not be disputed simply because the Committee did not agree with it, however. He emphasised that magistrates should begin acting more like judges collectively, and less like public servants, or else their demands would go unnoticed. They needed to make themselves heard better.

Mr Djaje said that threatened strike action from magistrates was symptomatic of the building frustration with the decision-making process. He agreed that the Commission needed to continue to be independent, and that ICRC should have actively made submissions. However, he reiterated that the Commission ought to have requested input from the LCRC before making a formal recommendation. If the same decision had been reached following meaningful engagement with stakeholders, there would not be the same level of concern.

The Chairperson said that when recommendations were made about MP salaries by the Commission, there were often grumblings but they were never made public. It was up to the collective body to persuade the Commission to change its mind. The Portfolio Committee could not and would not seek to overrule the Commission. A detailed report on the process would be requested, as well as information regarding the consultations they had held. However, he repeated that just as every sector of Parliament did not send their own delegation to the Commission, neither should every sector of the Lower Courts require to be specifically represented.

Ms Schafer said that the appropriate avenue for the magistrates would be to pursue legal action about the decision rather than threatening strike action. She asked also at what point prosecutors began to earn more than magistrates. She added that if improper criteria for the recommendation were being used, then there would be a legitimate legal action available and that this should be pursued.

Mr S Swart (ACDP) said that the frustration of the magistrates was understandable, but a strike would be harmful to the criminal justice system as a whole and that a united front should be formed to firstly approach the Commission to revoke its recommendation and in the event of failure, seek a legal remedy. He asked that the LCRC be aware of public sentiment surrounding the courts and employ caution in its approach.

Mr Jeffery added that the LCRC was not a body in isolation and that the larger body, the Magistrates' Commission should be informed and requested to take up the matter with the Chief Justice. The Portfolio Committee should nevertheless request details on the process that had been followed by the Independent Commission so as to verify, separately from the courts, whether it had been satisfactory. He also wanted information from the Department of Justice at some stage in the future, precise breakdowns of salaries earned by prosecutors and magistrates in the various courts. If it was true that a noticeable salary gap had appeared that was increasing, this posed a serious problem for this career as a whole.

Ms C Pilane-Majake (ANC) asked how the LCRC worked and whether it was not possible for them to be proactively in engaging the Independent Commission.

Mr Djaje answered that they required an invitation from the Commission in order to engage with them and that their inputs were by way of a memorandum rather than through direct interaction. When requested, they would submit this memorandum. He said that the ICRC had previously requested meetings to make known their concerns but they had been turned down. Submissions were therefore in the form of a document rather than a presentation made in person.

The Chairperson thanked the LCRC members and Mr Djaje for this input. He would meet with the NCOP to discuss a possible rescission of the decision not to increase magistrate salaries. He would also request a report from the ICRPOB on the process taken in making its recommendation, specifically the degree of engagement with stakeholders. He emphasised that the Portfolio Committee did not have the authority to hold the Commission responsible for its decision but they would investigate to the extent of their powers.

The meeting was adjourned.

Appendix
Magistrate pay rise frustration  

Independent Online February 18 2013 by Sipokazi Fokazi

Desperate magistrates have turned to Parliament for help after missing out on salary increases granted to their public service counterparts almost seven months ago.

This comes after magistrates rejected the 5.5 percent increase on offer last year.

Parliament’s oversight committee on justice said last week it would approach the National Council of Provinces (NCOP) to review its decision, based on the magistrates’ objections, to reject the 5.5 percent increase recommended by the Independent Commission for the Remuneration of Public Office bearers for the 2012/13 financial year.

Luwellyn Landers, of the ANC, who chairs the committee, said while it had no powers to overturn the 5.5 percent increase, it would ask the NCOP for a review and to approve the increase recommended by the commission.

The committee would also ask the commission to provide it with a report of the procedures and extent of the consultation.

President Jacob Zuma approved the 5.5 percent increase in July, following the recommendations of the commission.

But the increase was rejected by the NCOP after judicial unions – the Judicial Officers Association of SA and Association of Regional Magistrates of Southern Africa (Armsa) – asked the council not to approve it.

They were aggrieved by the blanket increase, which they felt would increase the gap in earnings between themselves and judges, and did not distinguish between levels of public office bearers.

In September last year, the Pretoria High Court set aside the previous 5 percent increase that had been backdated to April 1, 2010.

Reduction
Armsa had argued that the increase amounted to a reduction in regional magistrates’ salaries as it failed to keep up with inflation, and that the independent commission had not taken account of its members when making its recommendation for a 5 percent increase on the basis of “one size fits all”.

Judge Eberhard Bertelsmann ruled that Zuma was obliged to consider the circumstances of the individual categories of public office-bearers and their claims to salary adjustments, before arriving at a conclusion.

Magistrates have, in the past, been the unhappiest of all public office bearers, having also challenged proposed pay increases in 2009, 2010 and 2011.

If they had accepted the 5.5 percent increase last year, a “special grade” chief magistrate would have earned R1.06 million a year, a regional court and a chief magistrate R944 089, a senior magistrate R777 887 and an ordinary magistrate R708 136.

This compares to the salary of Chief Justice Mogoeng Mogoeng, after the increase, of R2.36m; that of a Supreme Court of Appeal judge at R2.12m; R1.89m for a Constitutional Court justice and R1.53m for a high court or Labour Court judge.

While Zuma has the power to approve salary adjustments for public servants, in the case of judges and magistrates these must be ratified by the two houses of Parliament first – the NCOP and then the National Assembly.

Modibedi Djaje, Gauteng’s regional court president and chairman of the Lower Courts Remuneration Commission – a substructure of the Independent Commission for the Remuneration of Public Office Bearers – said the commission had repeatedly failed to consult magistrates.

Djaje said even more frustrating for magistrates was the widening gap between judges, magistrates and prosecutors, to which the commission had turned a blind eye.

He said some prosecutors were earning more than magistrates as a result of the uniform increment.

“Just imagine if you are a head of court and your prosecutor earns more than what you earn… I don’t know whether it was the intention (of the commission) to achieve that,” he said.

The committee, however, would not give any guarantees.

Landers told Djaje the committee could not reverse the commission’s recommendations.

“If these salaries are not approved by the end of March, unfortunately they will miss out on the increases completely,” said committee member John Jeffery of the ANC.