During 2012 the Committee had recommended that the National Assembly ratify the President’s approval of a 5.5% salary increase for magistrates by the Independent Commission on the Remuneration of Public Office Bearers (ICR). The Judicial Officers Association (JOASA) and Association of Regional Magistrates (ARMSA) had been unhappy with the procedure followed by the ICR and had therefore lobbied the Select Committee on Security and Constitutional Development not to ratify the decision, which they had not done. However, if the 5.5% increase was not approved by 1 April, the magistrates could not receive the increases, as they could only be backdated for 12 months. JOASA and ARMSA now urged this Committee to reject the 5.5% proposed increase, on the basis that the Committee should find that no proper consultative process was followed by the ICR. They submitted that over the last few years, ICR consistently failed to follow its own legislation and to properly consider the role, status, duties, function and responsibilities of magistrates. In respect of the latest increase, it had failed to consider a detailed memorandum and submissions by ARMSA. JOASA stressed that this body was not so much concerned about the rands and cents as with the process, although it also had sympathy with individual magistrates who wanted to get an increase. Both were convinced that the Portfolio Committee had oversight over and could investigate the processes of ICR. They were unhappy that the matter had been delayed for so long and that magistrates were now essentially being forced into a decision on whether to accept the proposed increase in order not to lose out altogether.
None of the Members agreed that the Portfolio Committee had any power to review the ICR’s decisions, pointing out that it would be a conflict if it did, because the ICR also made recommendations for MPs’ salaries. JOASA countered that it was necessary to find out who did have this power, as nobody seemed to know, although it said the Select Committee had obtained a legal opinion confirming the authority of the Committee. Members confirmed that there was authority to make a determination on the President’s decision, but this was different from the ICR process. The Constitutional Court was already considering another case in relation to a previous determination. Members suggested that ARMSA should take the ICR and President on review, but ARMSA responded that this was not possible because ICR made only an inchoate finding, which could not be implemented until the President and Parliament had taken further steps, that it had some reservations about taking the President on review, and that because Parliament was mentioned in the legislation, it had the duty to act if ICR processes were flawed. Members also made the point that if this Committee were to approve the 5.5% increase in the meantime, it was unlikely to prejudice any further review, but JOASA said that this would be seen as the Committee condoning incorrect actions by ICR, when it should be calling it to account.
Other points raised during the discussion included comparisons between the Chief Justice’s and magistrates’ salaries, the recommendations to virtually double salaries, made earlier by the Lower Courts Remuneration Committee, alleged discrepancies between magistrates’ and prosecutors’ salaries, whether increased jurisdiction of resulted in longer court hours that justified further salary increases, and the fact that most magistrates were unwilling to preside over sexual offences cases. All Members were concerned over a statement that magistrates were considering going on strike, did not think this was a professional approach and warned that it could have serious consequences for the image of the courts. They also questioned if this would be a lawful action, noting a comment by a former Chief Justice that magistrates should not resort to industrial action. Several members also asked about the mandate of JOASA, ARMSA and the Lower Court Remuneration Committee and why they did not speak with a unified voice. There was brief discussion over other points around the single judiciary. The Committee assured both JOASA and ARMSA that it was sensitive to the plight and concerns of magistrates, and had noted their points, and would debate the requests on the following day.
Magistrates’ salaries: Discussions with Association of Regional Magistrates and Judicial Officers Association South Africa
The Chairperson noted that both the Association of Regional Magistrates (ARMSA) and Judicial Officers Association South Africa (JOASA) were present. He noted that the meeting was to discuss the recommendation on magistrates' salary increases and summarised that these were handled by the Independent Commission on Remuneration of Public Office Bearers (IRC), who made recommendations to the President, and the decision of the President must then be ratified by Parliament. This Committee had approved it, but the Select Committee on Security and Constitutional Development did not.
Mr David Makhoba, President, Association of Regional Magistrates, said that the invitation from this Committee had indicated that the discussions would be about the draft Notice. ARMSA had made submissions to the NCOP Select Committee, on the basis that there was a dispute between the magistrates and the ICR, with the magistrates feeling very aggrieved by the recommendation of that Committee. After the Select Committee had considered the matter and resolved not to support it, the increases could not come into effect and the magistrates were prejudiced, as they were still being paid at the old salary rates.
Mr H R Louw, Member of ARMSA, submitted that this Portfolio Committee must find if there was proper consultation with stakeholders. If there was, then the 5.5% proposed increase should be passed. If, however, ARMSA's submissions managed to persuade the Committee that there was no proper consultation, then the 5.5% proposal would have to be rejected by the Committee, using its oversight capacity and refer it back to the President, who must then refer back to the ICR.
Mr Louw said that ARMSA had studied the minutes of this Committee on the day that submissions were made by Mr M Djaje, the Chairperson of the Lower Court Remuneration Committee (LCRC) and on 18 October, prior to the request for input, there was a meeting between ARMSA and the Secretariat and Chairperson of the ICR. He had given a presentation, and, in his capacity as spokesperson for the LCRC, had requested the opportunity to give a powerpoint presentation. However, on the day of the meeting, Judge Willie Seriti had refused the presentation, giving the reason that this was not arranged in advance, although Mr Louw claimed that he had made arrangements for this personally.
He wanted to give some background. There were many concerns about the position of magistrates, but one of them was the difference between the salaries of judicial officers and public prosecutors, the latter being part of the public service. The magistrates had fought long and hard to be recognised as a special position outside the public service. The executive conceded that there were substantial differences but had said that the salary structures would be investigated. It later transpired that this was not being done at that time, but later the magistrates had presented their representations to the Chief Justice (CJ) and thought that this would have been brought to the notice of all parties. However, after the NCOP had, in December 2012, indicated that it would not support the 5.5% increase, it had come to light that the 28-page report that now formed part of the bundle was not studied by the ICR, and for this reason ARMSA did not believe that there was proper consultation. ARMSA was not here to haggle about rands and cents, but the principle of whether the recommendations were based on proper consultation. The legislature had enacted a process, and it must be fairly followed. ARMSA was asking that it be given a fair hearing at the ICR - not to be heard after the minds of that Commission had already been made up. This had been a problem over the last few years, when the Government Gazette notice was issued before calling for input.
He noted that the ICR was obliged, every year, to consider the role, status, duties, function and responsibilities of magistrates, but that the last time this was properly done was when the 2007 and 2008 reports were issued. ARMSA felt very strongly that despite what the ICR may say, due consideration had not been given to this, and he reiterated that on 13 December 2012 there was a concession that the ARMSA submissions had not been placed before that Committee. The Regional Court now was very different to what it had been in the past, and the ICR had neither denied nor admitted this point, but just ignored it.
Mr Makhoba gave a brief overview of ARMSA. It was, as its name suggested, for Regional Magistrates only and represented about 95% of all regional magistrates. The magistracy was transforming and he applauded all those involved in appointments. The majority of regional magistrates now were women and three of the Regional Court Presidents were women – one black, one coloured, one white and there were currently two acting black males. In Pretoria he saw transformation on the Bench, where there were two or three white males and one white woman.
He noted that regional magistrates' jurisdiction had increased over the last few years, and they could now imposed life sentences, did handle sexual offences matters, complex divorces and civil matters. Essentially the main difference between the Regional Court and High Court was that only the High Court handled appeals.
Mr Nazeen Joemath, President, Judicial Officers Association of South Africa, said that the notice from this Committee indicated that the draft Notice was to be discussed. The members of JOASA were not so much concerned with the percentage increase as the manner in which this had been arrived at. JOASA believed that the ICR had failed to comply with its own Act. He noted that every institution had a watchdog, but he was not sure who it was for ICR (it was later suggested that it was this Committee). Every year, the ICR had to make recommendations that must be implemented by 1 April each year. there was not one year in which it had stuck to the times, and last year it had been six months late, at which stage representations were made by JOASA to the Portfolio and Select Committees. He pointed out that if the percentage increase was not approved by 1 April, the magistrates would become victims f the process as they would not then be awarded the increase.
He gave some background, saying that when the Moseneke Commission had debated the recommendations on pegging of salaries, the salary of the Chief Justice was fixed at a certain scale, and all High Court salaries were adjusted. However, the process did not extend to the magistrates. At one point a magistrate was earning 46.9% of the Chief Justice’s salary but since their salaries had not been increased the current ratio was that a magistrate was earning only 30% of the Chief Justice's salary. That related to salaries only, and did not even touch upon service benefits.
Mr Vincent Ratshibvumo, Former President, JOASA, added that magistrates had serious frustrations on the issues. They had been following the minutes of this Committee, so were familiar with what had been said. The Select Committee had reached a conclusion that the ICR had failed to comply with the legislation and had recommended to its House that the recommendations be rejected. However, this Committee and the NA had approved the 5.5%. After the Chairperson of this Committee had explained the implications to the Select Committee it had decided to rescind its decision and to recommend approval of the 5.5% by both Houses.
JOASA and ARMSA questioned if it was possible to "revive the dead man”, which was essentially the objections of ARMSA and JOASA to the whole process before the ICR.
He explained that JOASA represented magistrates of all ranks, and included also some judges. JOASA was probably representative of about 80% of magistrates in the lower courts. Because it was a voluntary association, there were some magistrates who were not interested in joining. It was quite possible that some individual magistrates may have urged this Committee to approve the 5.5% increase, so that at least they would get some increase, and JOASA was not unsympathetic to their position. Indeed they all wanted to see increases, but there was a further logistical problem. Increases could be backdated by no more than 12 months, so that if they were approved after 1 April the magistrates would effectively be losing out on increases month by month. It was very unfair that they were being forced into a position of accepting the 5.5%, or nothing. The ICR had had the whole year to fix the salaries and the recommendations came in September 2012. Since then, the process had been stalled, and only today were they given an opportunity to appear before this Committee.
There was also a further problem if the 5.5% was accepted, despite the alleged failure of the ICR to consult, as it may well decide on a similar increase for all public office bearers, making them too into victims. The ICR had to be told that it was not compliant with its own legislation and if Parliament allowed this state of affairs to continue because the magistrates wanted to get an increase, it would be incorrect. The alternative could be to amend the legislation on backdating of salaries, to allow for an exception to the 12-month rule, "to compensate for any losses". Now that the delegation had highlighted its submissions that they had been failure to consult, it would bolster the position of the IRC, who may well simply say 5% for all public office bearers. It may not just be judicial officers who are victims. The IRC had to be told that they were not complying properly with its own Act. If the House decided to let it go because the magistrates were hungry, the IRC would be encouraged simply to continue. This legislation saying that salaries could not be backdated for more than 12 months should be amended to say “ unless to compensate for any losses”.
Mr Ian Colditz, Member, ARMSA, noted that although review papers were put out in 2007 and 2008, the actual investigations were done between 2004 and 2006 – seven years ago.
The Chairperson summarised the main points raised. The magistrates had submitted that there was no proper consultation with the ICR. They had stated that the comparison between magistrates and prosecutors' salaries was not the issue today. JOASA was more concerned with the proper consultation process than the figures. He hoped that Members would address the question asked by JOASA "Why are we here?"
Mr J Jeffery (ANC) noted that the ICR was chaired by a judge and was set up to make recommendations on the salaries of public officer bearers – which would include magistrates and judges. Previously, these had been handled by the Minister, but the involvement of the ICR was chosen to safeguard their independence. For judges and magistrates, the ICR would make recommendations to the President, who would consider and approve them, but before being gazetted, those had to be approved by both houses of Parliament. The practice over the last few years had been that there would not be any departure from the ICR recommendations. However, there were occasions where the President had not agreed and had referred the matter back to the ICR.
Mr Jeffery said that in the 2007/08 review, the salary differences between MPs and the President had increased dramatically, but he drew the distinction that ordinary MPs could at some stage become Ministers and then return to ordinary MPs again. This would not happen with judicial officers.
Mr Jeffery noted that both JOASA and ARMSA were involved in litigation against the President. He agreed that the correct process – as followed – was to take the President and ICR on review. This Committee had to consider the increases, but he did not feel that it was its function to investigate the ICR and reiterated that if ARMSA felt that it had not been properly heard, it must take it on review.
Mr Jeffery took the point about the increased jurisdiction and responsibilities but asked if magistrates were sitting longer in court, or for more court days, as the Committee had not seen this. At a recent conference of the Chief Justice, it was noted that there were fewer sexual offences courts because magistrates were refusing to sit in them. He reminded ARMSA and JOASA that although the jurisdiction had risen, the High Court of court also had the responsibility to review and hear appeals.
Mr Jeffery noted the comments also for a single system for the judiciary and magistracy, saying that the Constitutional Amendments had included something along these lines, but the problem from the Committee’s standpoint was that the representations on a single judiciary from the magistrates only appeared to address their conditions of service, and not whether it would result in better access to justice.
He referred to the batch of correspondence and picked up a comment that from 18 to 22 March, the magistrates intended only to attend to postponements. He questioned if this was really appropriate for it suggested that the magistrates were going on strike. He summarised some of the other suggestions in relation to salary raises. He noted that public servants could join unions but magistrates could not, and said that the threat of action was akin to the magistrates acting like a trade union. He noted that the entry level salaries at the moment were R621 000, and the 5.5% would take this to 708 000. The Lower Court Remunerations Committee (LCRC) had, however, proposed that the entry level be raised to over R1 million, which was almost a one hundred percent increase. He asked if that was appropriate and affordable.
Mr Jeffery also read out comments about the district court prosecutors, and said that despite the allegation made that some regional court prosecutors were earning more than magistrates, there was no evidence of this. If magistrates really wanted to be treated as public servants, then that was their choice, but the whole point of having the ICR was to ensure that they had a higher status with more independence. He was not sure where the salary proposals would come from. He still had a fundamental difficulty that, given the process in place through the ICR, it was not for this Committee to make another decision and the proper remedy if the magistrates were unhappy was to call for a review. He noted that every public official had some disagreement on the salaries, including MPs. He did not think it would be possible to amend the legislation retrospectively, and that would in any event take time. He reiterated that in his view it was up to the courts, not this committee, to review the decision of the ICR. He thought that the only appropriate course of action would be for this Committee to approve the 5.5% increase, and let the remainder of the issues be taken up at the proper forum.
Ms D Schäfer (DA) shared these concerns. Parliament could not, in her view, call the ICR to account, and she was worried that the magistrates did not appear to understand that point. This Committee had no authority to make a final finding. She noted that ARMSA had already taken the matter to Court. The only function that this Committee may perform was to agree or not agree upon the 5.5%. She did not think that any pending or contemplated actions on the process would preclude the Committee from approving the increase, and she also did not think it would jeopardize any review, as they were different issues. In her view, therefore, the Committee could award the increase, or not, in which case there was indeed a risk that nothing would be awarded.
Ms Schäfer asked where the mandate of JOASA and ARMSA came from, given that there was a Lower Court Remunerations Committee, which some people claimed had the mandate of every magistrate, whereas JOASA and ARMSA were voluntary associations.
She shared the concerns of Mr Jeffery on the comment that the magistrates would strike, felt that this would not do the court any good and did not promote the professionalism of the judiciary that she expected. She reiterated that it was the Court who must make the decision on whether the ICR had acted correctly.
Mr S Swart (ACDP) appreciated the frustrations and concerns but also stressed his view that the correct avenue to follow was for the magistrates to take the ICR on review. It was not for this Committee to second-guess that process. He noted that he also served on the Finance Portfolio committee, and every department – including the Department of Justice – had been warned that they would have to take massive budget cuts. The finances of the country were under extreme pressure. The magistrates may well have a valid point on the consultation, but that was for the courts to consider, and this Committee could not exercise any jurisdiction, particularly since it was also the ICR who determined MPs’ salaries.
Mr Swart wondered if the 80% of magistrates who were JOASA members did not want to accept the 5.5% increase, as he thought many who would want it. It seemed to be a logical approach, although not perhaps the best, for JOASA to accept the process on the increase, and then go further with the litigation, on which hopefully the courts would assist. He noted that since the President had referred a previous case back to the ICR, there was a strong case to be made out.
Mr Swart also urged the magistrates to be very careful about embarking on strike action. The Committee was mindful of their frustrations and must also accept some responsibility for not responding quicker, but he cautioned that a hardline approach might lead to hardening of attitudes. MPs had also been unhappy with some of the recommendations on their salaries, but had accepted them.
Mr Jeffery asked if the “strike” action was legal.
Mr Swart said that whatever action magistrates were thinking of, the unintended consequences would need to be considered.
Ms C Pilane-Majake (ANC) was concerned that the processes did not appear to be properly coordinated, and was worried about the multiplicity of representations from various structures. She asked if the LCRC was represented. She too stated that Parliamentarians were sympathetic to the magistrates’ submissions, but she would be very worried about any strike, which would send out the wrong message. If the 5.5% increase was approved, that would solve at least part of the parliament.
Ms S Shope-Sithole (ANC) noted the comments on women’s representation in the magistracy, and was grateful to see the changes, but asked that the position of males should also be protected.
Mr J Sibanyoni (ANC) stressed that the wider jurisdiction was conferred to open up justice to the poorest of the poor and he was also worried to hear the threat of a strike, and asked if it was in fact already being implemented, because in one court he had heard that no cases had been dealt with for some time.
Mr J van der Merwe (IFP) noted the concern that the magistrates were consulted only after a decision was made by the ICR and wondered why ARMSA and JOASA had approached this Committee, because essentially their action should lie against the ICR. He said too that if they did take the ICR on review and were not successful, they could not “punish the country” with strikes.
The Chairperson said that he regarded magistrates as a body of professionals, and it was clear that they were not merely civil servants, as recognised by the changes made in the legislation. This Committee was not insensitive to their frustrations. The Committee also noted that the magistrates wanted to be regarded as judges but that was another large debate, and it would not happen overnight.
The Chairperson wanted to clarify the process. The two associations had successfully lobbied the NCOP committee to reject the 5.5% increase. However, he pointed out that this had not gone to the House, as confirmed to him by the Chair of the NCOP. The implication of that lobbying was that the magistrates would not receive an increase, and if that was what they wanted, that was their choice. He had heard the comment of Mr Ratshibvumo that the magistrates were essentially being held to ransom, but the reality was that if one of the Houses rejected the increase, it would not be awarded. JOASA was before this Committee because it had requested to speak to the Committee, because the Committee had also spoken with the LCRC.
The Chairperson fully agreed with other Members that this Portfolio Committee had no authority over the ICR, and reiterated that there would be serious conflict if it did, because the ICR determined salaries and benefits of MPs. He believed that the correct action was to take the ICR on review.
Mr Jeffery asked for comment on the legality of the strike action.
Mr Louw noted Members’ comments that the magistracy could take the ICR on review, but claimed that this was not possible in law, because the ICR made a recommendation, and not a final decision. No magistrate really wanted to take the President on review.
Mr Jeffery pointed out that the President had already been taken to Court many times. This review was about the process, not the decision.
Mr Louw responded that it was an inchoate action. The ICR’s action did not elicit results in itself, and both the President and ICR, in their answering papers in the court actions, argued that it was in fact Parliament who was the final decision maker. ICR made recommendations to the President. The President made a determination, which would come to Parliament as a draft notice. It was submitted that it was Parliament who took the action. He commented that the system was like a “blind room” in which nobody knew where they stood. ARMSA could take the President on review, but he reiterated that ARMSA felt that ICR had failed to comply with the Act, and have proper consultation, and it was the duty of this Committee to state that no proper consultation was held.
Mr Louw commented, in answer to the referral back, that that had happened only once, in 2007, although on three other occasions the President had reduced the amount recommended by ICR without it being referred back.
Mr Jeffery noted that in 2010 President Zuma had apparently referred it back to lower the increase, but the point was that usually the ICR recommendations were not altered.
Mr van der Merwe still did not understand why ARMSA could not simply take the ICR on review.
Mr Louw reiterated his view that this was because there had to be an action on the recommendations of ICR, as their actions alone did not have any result. The latest Clicks case was in point.
Mr Jeffery stressed that the Portfolio Committee was not a court, and could not review the ICR.
He asked how many cases were ongoing at the moment.
Mr Louw noted that there were two.
Mr Jeffery noted that one was in the Constitutional Court. ARMSA and JOASA were judicial officers, making judicial decisions, and the demands that they were making here were bypassing the court’s functions. He noted that magistrates would be very unhappy if litigants went on strike or took other action if they were unhappy with processes, and wondered then why JOASA was not using the processes that it could.
Ms Schäfer noted the comment on the final decision but said that the Committee also did not take the final decision, and urged ARMSA not to be afraid of taking the President on review.
Mr Louw stressed that it was not in the interests of the country if the judiciary was seen to be at loggerheads with the Head of State, and the decision to go on review was not taken lightly. The matter in the Constitutional Court was awaiting judgment. The decision by Judge Bertelsmann had not been overturned. ARMSA did not believe that it was acting outside the professional boundaries of regional magistrates when it addressed Parliament on the same mistakes that were perpetuated after the case was brought to the attention of the ICR.
Mr Louw responded to the concerns about the mandate, and said that the LCRC was originally intended to be the only committee speaking on behalf of magistrates, but ARMSA and JOASA did not have a seat on that. On 20 May 2011, the Chief Justice had called a number of magistrates together, and a loose non-statutory Regional Court Presidents Forum (the Forum) was invited to get the LCRC off the ground. Under the auspices of that Regional Court President’s Forum, he and another regional magistrate were invited to sit on the LCRC. However, they were there as representatives of the Forum, not to further the efforts of ARMSA. To a large extent the positions of the Forum, JOASA and ARMSA coincided. However, representatives of JOASA were not even called in, and only after the intervention of one of the judges was a JOASA representative invited. Last weekend, the Forum withdrew from the LCRC, so that ARMSA would not have any representation in any body making decisions.
Mr Jeffery said that this was something that had to be brought to the attention of the Chief Justice.
Mr Louw said that he thought protocol was probably followed. The President of the Magistrates Commission had heard of this and there would be a meeting on the following day to try to get a cohesive process going again.
Mr Jeffery said that no unified position of magistrates appeared to have been presented.
Mr Louw said that this body was supposed to write documents, but he himself had had to ask for favours to get things drawn up. There was no will to strengthen the hand of the LCRC. Some consultants had suggested that if the documents were presented to the ICR, there would be a substantial increase. However, the members of the Board of the ICR never got to see those documents.
At the same meeting of the Regional Court Presidents Forum there was discussion around the sexual offences courts. He pointed out that this work was incredibly stressful and magistrates were offered no support, no long leave and no recesses and heard sordid and stressful cases day after day. He also noted, in response to the comment on court hours, that the case could not proceed if recorders were not working or interpreters not available, and much as the magistrates wanted to make things happen, they often could not, and could also not award punitive costs orders against those responsible for delays.
Mr Jeffery said that he had raised the point about the longer hours in response to the reference that ARMSA had made to additional laws it had to implement. He agreed that the sexual offences courts were stressful, but the same stresses applied to police officers and prosecutors, and that point too was made at the Access to Justice conference.
Mr Ratshibvumo was sorry to hear some of the comments from Members, and thought that they either did not understand the situation or lacked empathy. JOASA had indeed asked for the opportunity to address the Committee, but it wanted the Committee to take a decision. He wondered what more JOASA could say to persuade this Committee to reverse steps already taken, and was unhappy that it had not been able to put across its points earlier.
Mr Ratshibvumo noted the comment that the magistrates must take the ICR or President on review, but commented that this was passing the buck. Magistrates had many instances in which they could do the same, referring people perhaps to pastors or tribal chiefs, but they did not, preferring instead to try to assist them. This Committee did not appear to be thinking of how it could assist the magistrates, but was searching for another forum to which to refer them on. If it was true that the review responsibility did not reside with this Committee, then he questioned why there was legislation that this Committee must approve the determination. The reasons why the Committee should disapprove of the ICR recommendations had been clearly set out.
Mr Ratshibvumo said that magistrates indeed did work extra hours. All the extra training to implement new laws had been done by JOASA workshops over weekends. They did not prepare their judgments during normal court hours, but after hours and at weekends.
Mr Ratshibvumo denied that the main concerns made by the magistrates in relation to a single judiciary had focused on benefits, as a number of other aspects were addressed. In fact, though, the magistrates knew that they enjoyed far fewer benefits than the High Court judges. The magistrates were not seeking to earn the same, but did require financial independence, and he emphasised that whilst civil servants were permitted to join the government pension and medical aid, magistrates were not, and had to seek their own expensive schemes.
He wondered why this Committee was asking for a single view and why it had referred to the LCRC if it regarded its recommendations as unreasonable. He noted that the increase referred to by Mr Jeffery had been requested to bring about greater parity between the judiciary, legislature and executive. The Chief Justice earned the same as the Deputy President and Speaker, and although this had raised his salary, those of other judicial officers did not follow suit, which meant that the latter were lagging behind. The recommendation was intended to bring the salaries, by comparison with others, in line with the 2007 levels. The gaps between various judicial officers were huge, considerably more than in other countries where JOASA had done comparative research. He agreed that there were difficulties in sourcing extra funds, but reminded the Committee that there were less than 2 000 magistrates in the country and the medical aid and pension benefits would be within reach.
Mr Jeffery said that magistrates may not – like MPs – have agreed with the Moseneke Commission, and added that there was also a huge disparity between ministers and MPs. He noted the percentage comparisons between magistrates and the Chief Justice but made the point that the salaries had not actually dropped; only the comparisons differed. It would be useful to see a graph of increases. It did not follow that if the Chief Justice received more, so must every other judicial officer.
The Chairperson said that he was very worried if this whole process was appropriate. The ICR considered salaries and benefits of judges and magistrates, but the Commission also considered the salaries and benefits of traditional leaders and public representatives. If, in principle, it was correct that magistrates should be able to appeal to the Portfolio Committee, then every other class who was considered by the ICR should as well. Only magistrates had approached this Committee. He did not think that, once the ICR had been established, it was ever intended that magistrates could put their demands to this Committee.
Mr Preggy Govender, Vice President, JOASA, said that this was a very pertinent point. The crux of the issue was the responsibility and role of this Committee. JOASA firmly believed that it had an oversight role over the ICR. Mr Louw had clarified the process. JOASA also believed that because the ICR’s recommendation was not final, it was impossible for it to be taken on review, and that was why Parliament had to consider the matter, and decide whether to approve or disapprove the process. He was quite adamant that the Committee had this role.
The Chairperson understood that the Committee must look at the President’s recommendation and approve or disapprove that, but he strongly disagreed that the Committee had oversight over the IRC.
Mr Govender noted that the Select Committee had apparently sought legal advice when approached by JOASA, and he had understood that the legal opinion said that Parliament did have this authority.
The Chairperson said that authority to decide was one thing, but having a second round of hearing was something entirely different.
Mr Govender said that JOASA was not here to bargain on salaries, as it could not do that. The ICR should deal with salaries, but it had to properly investigate and come up with a recommendation. The figures mentioned by the LCRC were not something for this forum. However, JOASA still felt that the process was followed by the ICR was incorrect, and it was for Parliament to decide on that.
Adv S Holomisa (ANC) asked what exact relief JOASA and ARMSA had sought from the court, and how that related to what they were seeking here, and whether there were overlaps. He thought this Committee needed to think and discuss further on the process. The Committee could call for more clarity from anyone. He also had some doubts about this Committee questioning the work of the ICR, upon which MPs were also reliant.
Ms Schäfer thanked the magistrates for elucidating the issues but did not feel that the principle had changed. If the IRC was not the final decision maker, then the Committee was not either. She noted that the magistrates had not answered the point that approval of the 5.5% increase would not have a negative effect on their case. One of the cases ongoing at the moment related to the increases over the previous two years, and the Court may needed to look into the process of the ICR when making that decision, and decide who bore the ultimate responsibility. She assured JOASA that the Members of this Committee were not unsympathetic and were well aware of the issues, through sitting on the Magistrates Commission. She noted also that no answer had been given on the legality of the strike. She assured JOASA that the Committee was not “passing the buck” but that it felt it inappropriate. She also thought it was dangerous for ARMSA to say that it did not want to take the President to court and stressed that this was not a personal issue, but a question of procedure.
Mr Swart appreciated the dilemma and said he would like to check the court documents. If the ICR and the President were saying that they did not take the decision, that was a huge concern. If that was indeed the case, then he recommended that perhaps the Speaker of Parliament should be joined in the action. The Committee also would need to look at the legal opinion that the Select Committee had obtained. Another question that came out of the process was why this Committee, and not the Finance or Appropriations Committees were sitting. This engagement had been very useful because it raised a lot of questions about functions and powers.
Ms Pilane-Majake said that she had still not heard a satisfactory answer on why magistrates were not speaking with one voice. She heard the comments on the LCRC, and said perhaps its actions should also have been challenged. She hoped that in future, one structure could present and there could be a more focused discussion. There were some useful points about cases and benefits, although they were not entirely relevant to today’s discussions, and agreed with the comments on resources.
Ms M Smuts (DA) acknowledged that ARMSA had already taken the President on review, with the ICR. She had only recently read the Bertelsmann judgment, which said that Parliament ratified the President’s determination, but the main issue was whether this was administrative or executive action, and the rule of law applied to both. She asked when the Constitutional Court decision was expected. She noted that the case had gone straight to the Constitutional Court
Mr Jeffery said that he had understood that judgments was expected soon from the Constitutional Court, and that would be useful. He stressed that judicial officers should not have to engage with the executive over salaries. Judge Chaskalson had made the point that judicial officers cannot and should not resort to industrial action to resolve their grievances. He was very concerned about the message that this sent out. He reiterated that legislative amendments were not appropriate and in his view the only question was whether Parliament would approve the 5.5% increase. This Committee was not discounting what had been said that the disputes with the ICR would have to be discussed further. More debate was needed on the correct body to call the ICR to account for its decisions. He responded again that he had raised the question of the court hours because of ARMSA’s comment on the increased pressure it faced.
Mr Nazeem Joemath, President, JOASA, said that he could not agree with Mr Jeffery on a couple of points. He questioned where the comment came from that said the courts sat only four hours, and said that whilst a prosecutor may work on one case for this, the court hours were different, and the Magistrates Commission could give the correct figures. He also stressed that a magistrate’s duties went far beyond sitting in court, as he had also to attend to numerous administrative duties such as inquests, search warrants, and other applications, and preparation time must also be taken into account.
Mr Jeffery clarified that the hours were noted in a document from National Treasury, which he would send to JOASA for later discussion.
Mr Joemath stressed that his point was that sitting in court was not the sum total of the work.
Mr Joemath said that LCRC was established without consultation, as the centralised point to consider remuneration. It was now disintegrating because of mandate. When Mr Djaje had addressed Parliament, this was done without mandate from LCRC and the concessions made by Mr Djaje were contrary to the documents presented. He assured Members that he had been a member of the LCRC at the time, and no such decision as conveyed by Mr Djaje was made there. He noted that JOASA received its mandate from its members, and the JOASA body was elected provincially and nationally.
Mr Joemath responded to the question from Mr Sibanyoni by saying that no strike actions had started, and if a court was only postponing cases, it was not at the behest of JOASA. He commented that he had not been aware that he would be expected to brief the Committee this morning on the strike action.
The Chairperson interjected that these questions were raised consequent to the media statement, which the Committee could not ignore.
Mr Joemath noted that this was not the first time he had publicly made that statement. He said that he could not adequately describe the frustrations of magistrates, and if they had listened to this meeting they would be even more demoralised. He recommended that Parliament had to get a legal opinion on the direction in which it had to move. These frustrations had been ongoing for a long time and since 2010 the magistrates had been trying to meet with the Minister, but at every door, it was told that this was not the correct forum.
Mr Joemath said that the points quoted by Mr Jeffery must be taken in context as that case had decided that judicial officers must be adequately remunerated. He said that “adequate remuneration” was something that had to be decided before looking into other functions. JOASA had essentially been forced into the current position. People tended to think that courts were production lines, and exactly the same justice applied in the high and lower courts. JOASA was asking the role-players to take strong stance. He felt that the Committee had not really been interested in hearing the representations in September and only after the mandamus was there haste to conclude the matter.
Mr Ratshibvumo added, on the question of the mandate, that JOASA’s mandate came from its members, whom he had described already. In relation to the 5.5%, he wanted to emphasise that he was not trying to say that JOASA did not want that increase, particularly as the 2012 increases had not yet been paid, but the position of JOASA was that the procedure was wrong. This was nothing to do with the fact that the cut-off date was 1 April. This Committee would be unfair to the magistrates if it said that if the 5.5% increase was not approved, they would get nothing, as this was holding a gun to their heads. It was not asking that the Committee not approve the increases. It was asking that it should do proper consultation and reconsider the salaries. He noted that he had been confident that the strike would be averted because he was expecting to be able to report back from this meeting with positive results.
Mr Govender also wanted to speak on the court hours. Different magistrates operated differently. If there were multiple accused, and a range f bail applications, postponements and so forth, a magistrate could deal with 60 matters a day. It was wrong to try to base salaries on statistics. The courts were overflowing with work, and magistrates needed to be empowered to work more efficiently. He agreed that finding the finance was a sensitive issue but pleaded that only the facts should be considered when determining what was rightly deserved, and the availability or source of the money could be decided later. ICR had made the mistake on another occasion of prefacing its feedback on salary discrepancies with comment on the lack of resources.
Mr Govender wanted also to clarify that at no stage did the magistrates say that they wanted to be aligned with prosecutors; the comparisons were made to outline what were the realities. Magistrates also did not want to be civil servants but it was important to note what benefits they lacked. They did want to be aligned in a single judiciary. At the moment, the magistrates were essentially being treated as civil servants.
The Chairperson said that this Committee would sit again on the following day to consider the recommendations. He reiterated that the Members appreciated and were sensitive to the concerns. Parliament had placed their salary determinations in the hands of a Commission because it was considered not appropriate for politicians to determine salary and benefits. The Committee had noted the concerns that the IRC did not follow procedure and would look at a method of engaging with them.
The meeting was adjourned.
- Submission by Lower Courts Remunerations Committee dated 15 February 2012
- Government Gazette 35543: notice of determination on salaries
- Letter from Independent Commission for Remuneration of Public Office Bearers, dated 9 December 2011
- Letter from Association Regional Magistrates to Committee, dated 18 February 2013
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