The Portfolio Committee on Justice and Constitutional Development (the Committee) met to consider its draft reports on allowances and benefits payable to magistrates; and disciplinary matters of magistrates. They also assessed the preliminary report of the Committee on allegations of maladministration against the Office of the Public Protector. The reports were considered with a view to table them before the National Assembly for approval.
The report on the Notice of Remuneration of Magistrates, Dated 13 March 2012, was adopted by the Committee with amendments. The Committee discussed whether they should wait for the decision of the Constitutional Court on the matter or if they should proceed with the report as it was. Members also stated that the report should clearly reflect that the public was frustrated at the inefficiency within the magistracy and that the actions of the magistrates had prejudiced the entire citizenry by denying access to justice. Furthermore, the magistrates’ frustration was disproportionate and unacceptable.
The Committee agreed to give the Public Protector Adv T Madosela, the opportunity to further respond to the issues highlighted in the report before tabling it before the House.
The report on the disciplinary matter of Magistrate Ntuli was adopted with minor amendments.
The Committee did not adopt the report on the disciplinary matter of Magistrate Ndamase. Members complained that the report was badly written and did not properly reflect the conclusions reached by the Committee. It was agreed that the report would be redrafted in its entirety. Consequentially, this also meant that the House would not be able to approve the removal of Magistrate Ndamase from office during this term of Parliament.
The Chairperson welcomed all present and requested that Members commence with the consideration of the draft reports before them.
Deliberations on the Committee Report on the Notice on Remuneration of Magistrates, dated 13 March 2013
Mr J Jeffery (ANC) noted that it was not necessary to include the contents of paragraph 7 of the report; it was not appropriate to report to one of the Houses of Parliament about what the other House was doing. He suggested that the recommendation under Paragraph 10 of the report, which stated that the matter be taken under review, be dropped. The phrase ‘representatives to the magistracy’ in Paragraph 10 of the report should be changed to ‘submissions from magistrate organisations’. Some magistrates had indicated that neither the Judicial Officers Association of South Africa (JOASA) nor Association of Regional Magistrates of Southern Africa (ARMSA) represented all magistrates.
Mr S Swart (ACDP) questioned what role the Committee played in this matter.
The Chairperson responded that the Committee was either to accept or reject the proposal. The Committee, in doing this needed to apply its mind to the issues before it.
Ms D Schӓfer (DA) echoed Mr Jeffery’s sentiments that JOASA did not represent the Magistrates. She noted that the Committee needed an idea of how to apply its mind - either to wait for the decision of the Constitutional Court or to go ahead with its report. The confusion lay with the Presidency’s assertion that it was not its final decision. It was advisable to wait for the decision of the Constitutional Court, and if no further clarity was given from the decision, then the Committee could proceed with the report as it was. The current issue of the 5.5% wage increase was not the issue before the Court - if the main issue was upheld then there might be a need to reconsider the whole structure of magistrates’ salaries. It was important that the Committee make recommendations, but Members should state clearly in their report that they disapprove of the methods used by the magistrates in the resolution of the issue.
Mr Jeffery noted that this had already been done in Paragraph 12 of the report, although the wording could be stronger. He drew the attention of the Committee to Paragraph 11of the report and requested that it should be reworded, stating the disapproval of the Committee on the refusal of magistrates to follow due process, including resorting to threats of industrial action.
Mr Swart noted that the last sentence of the paragraph had stated this.
Ms Schӓfer added that the report should clearly reflect that the public was frustrated at the inefficiency within the magistracy and that the actions of the magistrates had prejudiced the entire citizenry by denying access to justice. Furthermore, the magistrates’ frustration was disproportionate and unacceptable. She requested that the report indicate that the Committee noted that the matter before the court was not on salary increments - so it was clear that the recommendations of the Committee were not to prejudice the court action in any way.
Mr Swart referred to Paragraph 11 and questioned whether the threatened industrial action was illegal.
Mr Jeffery responded that Justice Chaskalson had indicated it was in his judgement highlighted under Paragraph 1 of the report.
The Chairperson noted that Paragraph 11 also indicated this.
After minor grammatical corrections were made to the report, the Chairperson requested that the Committee Researchers should effect the corrections highlighted by Members before the report could be adopted.
Ms M Smuts (DA) highlighted concerns that the Constitutional Court in its ruling might have an opinion about the Committee’s role and the validity or invalidity of its ratification of the recommendations. This probably implied some measure of authority for the Committee to interrogate the recommendations of the Independent Commission. If the Constitutional Court was of this opinion, then the Committee might have to change its position also.
Ms C Pilane-Majake (ANC) agreed with Ms Smuts, stating that it was necessary that the Committee clarify this issue.
Ms Schӓfer noted that it was necessary to clarify the factors that had to be considered by the Committee in making its decision.
Mr Jeffery moved for the adoption of the report, and Mr S Holomisa (ANC) seconded the adoption.
Consideration of Preliminary Report of the Committee on Allegations of Maladministration against the Office of the Public Protector
The Chairperson asked Members if the Committee should give the Public Protector, Adv T Madosela, the opportunity to respond to the issues highlighted in the report before tabling it before the House.
The Committee agreed that this was the best course of action. It was agreed that the Public Protector would be invited to address the Committee on the report.
Deliberations on Disciplinary Matters of Magistrates
Disciplinary Matter of Magistrate Ntuli
Mr Jeffery referred to Paragraph 6 of the report and the Committees request that the Commission established if Magistrate Ntuli was on his way to work- it was more desirable to have this reflected in the recommendation. The problem was that the recommendation was the legal instrument by which Magistrate Ntuli was to be suspended provisionally.
Ms Schӓfer suggested that the recommendation be taken out, as it made no fundamental difference to the report.
Mr Jeffery moved for the adoption of the report subject to corrections and Ms Schӓfer seconded the move.
Disciplinary Matter of Magistrate Ndamase
Mr J van der Merwe (IFP) drew the attention of Members to Paragraph 4 of the report and questioned where withholding of remuneration came into play.
The Chairperson recommended that Paragraph Four of the report be deleted.
Ms Schӓfer noted that the Committee had already confirmed that Magistrate Ndamase should be removed from office.
The Chairperson asked why the Committee was then considering withholding of remuneration if it had already recommended the removal of Magistrate Ndamase.
Ms Schӓfer replied that there had been no prior decision of the Committee on withholding of remuneration and the Committee needed the decision of Parliament to do this.
Mr van der Merwe responded that this meant Paragraph 5 of the report was also inaccurate.
The Chairperson on the recommendation of the Committee Secretary stated that the report should also reflect that the Committee had recommended that Magistrate Ndamase be removed from office and when this decision was reached.
Mr Swart added that Paragraph 5 was inaccurate - once Parliament took a decision then remuneration of the magistrate automatically stopped.
The Chairperson stated that there was confusion with the process. A resolution on stopping the remuneration still needed to be reached.
Ms Schӓfer clarified the confusion and noted that the last sentence of Paragraph 5 should read ‘pending the removal by Minister’ rather than ‘…pending the consideration by Parliament’.
Mr Jeffery decried the quality of the report, saying that it was poor, “shoddy” and did not properly reflect the conclusions the Committee had reached. He recommended that the report be redrafted.
Mr Swart remarked that it might be necessary for the disciplinary reports to set out the charges against the Magistrates. When the reports came before National Assembly, non Committee Members would not be aware of the charges the magistrates faced.
Mr Jeffery recommended that the report be cross-referenced to the full report containing the charges.
Mr Holomisa opined that the report must be redrafted.
Mr Jeffery noted with displeasure that the consequence was that the House would not approve the removal of Magistrate Ndamase from office during this term of Parliament.
Mr van der Merwe noted that the recommendation in the final paragraph of the report on withholding of salary was not dated.
The Committee agreed that the report be redrafted in its entirety. It was not adopted.
The meeting was adjourned.
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