Magistrates' salary adjustments: Department of Justice &Constitutional Development on latest proposals, Judicial Officers Association SA & Association Regional Magistrates

Meeting report

Magistrates’ and judges salaries: Request to approve draft notices on salary increases: Department of Justice and Constitutional Development briefings
Mr Blendynn Williams, Head of Office, The Office of the Deputy Minister of Justice and Constitutional Development, noted that the increases to the salaries of judges and magistrates were recommended  by the Independent Commission for the Remuneration of Public Office Bearers (ICRPOB) to the President, who then placed a draft notice containing the final recommendations to both Houses.

Dealing firstly with the recommended increase of the magistrates, he said that the President had made a final recommendation that an increase of 5% should apply across the board. The same essentially applied to the position of judges. In relation to magistrates, the only difference from the notice of the previous year was that the basic salary component (used for pension calculations) was now brought in line with other government officials, to 70% of total package, an increase from its previous 60% figure.

He noted that the ICRPOB, in making its recommendations, would consult with the Minister of Finance, Chief Justice and Minister of Justice and Constitutional Development.

He noted that the notices in respect of salaries had been challenged previously. The Association of Regional Magistrates (ARMSA) had taken the matter to court, and the North Gauteng High Court had set aside the final recommendation of the President in respect of the 2010 adjustments, which was taken after consultation with the Minister of Finance, to decrease the 70% average increase as recommended by the ICRPOB to a 5% increase. That decision was set aside and was to be reviewed.  The ARMSA had failed to satisfy the court on its allegations that the ICRPOB had failed to take into account all submissions made to it before making its decision.

Judicial Officers Association South Africa briefing
Mr Nazeem Joemath, Chairperson, Judicial Officers Association South Africa, also briefed the Committee. He said that the Association (JOASA) was extremely dissatisfied with the recommendations and did not accept that the ICRPOB had properly carried out its mandate. If did support that part of the recommendation that increased the pensionable salary component to 70% of the total package. However, the main concern was that the ICRPOB failed to take into consideration the impact of the recommendation on the pockets of Lower Court judiciary, in that the net salary increase was nothing more than a few hundred rands. The President’s 5% increase for all public office bearers had had the effect of increasing the salary gaps considerably more, placing especially the District Court Magistrates at severe financial disadvantage. JOASA wanted to urge this Committee to take all necessary measures to ensure that government provided the ICRPOB with the necessary financial resources and expert personnel to enable the ICRPOB to comply with its statutory obligations. The salary gaps should be narrowed, between the highest earners and the lowest, and the ratio percentage drop in remuneration from top to bottom should be uniform. Magistrates was frustrated and demoralised as a result of the constant worry about their salaries.

Discussion
Mr A Matila (Gauteng, ANC) stated that it was not the first time that the Committee was dealing with this particular matter. He noted that the Parliament had brought in a Bill that would bring the whole judiciary under one system, because there had been concerns that the lower court judicial officers were functioning differently from the higher court judiciary. He also noted that another Bill would assist more lawyers to become judges. He submitted that the Department of Justice and Constitutional Development (the Department) must help the Committee to make these laws work properly. It must be noted that some legal practitioners did not possess the same qualifications as others, and he pleaded with other Members that the Committee should not find itself in the same situation it had faced last year, and that pertinent issues that affected magistrates must be dealt with and resolved. 

Mr Matila said that, having expressed his sympathy for the situation, he must note that according to his own observations, many magistrate’s courts were “a mess” and that many magistrates were not performing. He had attended the courts many times to observe the functioning. The Committee had received numerous complaints and disciplinary matters, and in one particular court the Head of the Court was being disciplined and had been suspended.

Mr Matila noted that not everything hinged on money. He commented that many South Africans were too spoiled. The gap had been identified and needed to be closed. He fully accepted that there were differences between those holding different degrees, but suggested also that magistrates needed to change their own attitudes before lodging grievances. He accepted that in principle, prosecutors should not be earning more than magistrates. This point should be revisited.

The Chairperson sought clarification on 2008 ICRPOB recommendation and asked whether JOASA would be satisfied if this recommendation were to be implemented.

Mr Joemath replied in the affirmative. He noted that the “salary” of magistrates included also benefits and allowances, whereas those of a judge did not. A judge receiving a salary would receive it separately from other allowances. However, magistrates still had to purchase their own cars, pay for petrol and maintenance and so forth. Although there were such huge disparities in salary, it must be remembered that both magistrates and judges were implementing the same law and obliged to follow the same procedures, so they were in the same position.

Mr J Gunda (Northern Cape, ID) said that the magistrates could not be treated the way they were currently treated because they played a vital role in South African society. It was unacceptable that they were underpaid. It was sad to see magistrates coming to the Committee to lodge their grievances about underpayment. This surely demoralised them. Parliament preached equality but it did not apply it. He believed that this Committee should make an appropriate and rational recommendation to the President in respect of the magistrates’ salary increase. If magistrates took industrial action, the government would say that they were undisciplined and that they were not doing the right thing. The question that needed to be considered was how it could be that prosecutors earned more than magistrates. The same Parliament that adopted judges’ and magistrates’ salaries should be changing the system to ensure equality in the earnings of public office bearers. This government had made a promise to deliver, and to correct the wrongs of the past, and it was its duty to do so. Mr Gunda said he was becoming quite emotional on the issue, but asked the Chairperson how he would feel if a magistrate came to knock on his door, to ask for money for school fees or food for his children. He urged that the Committee take note of the grievances and take a resolution that would give pride to magistrates.

Ms H Boshoff (Mpumalanga, DA) agreed that it was not unacceptable for the magistrates to earn less than prosecutors, or not to have benefits and allowances. The Committee could not fail them on the ground of indiscipline raised by Mr Matila; instead, the proper process would be for this Committee or the relevant body to deal specifically with those civil servants who were undisciplined. The whole magistrate’s profession could not be prejudiced because one or a few individuals were not behaving properly.

Mr Preggy Govender, Vice Chairperson, JOASA, agreed that the magistrates and judges salaries were not aligned in a logical manner. It should indeed be understood that whenever the magistrates raised the issue of salaries, benefits and allowances, their very real concerns should not be overshadowed or cancelled out by random acts of misconduct that were a problem only among very few magistrates. He also agree that it was unreasonable for prosecutors to be earning more than magistrates, and said it was not clear how a person who judged the guilty and innocent would be paid less. The role of magistrate in society cannot be compared to other office bearers. Magistrates were neither agents nor commissioners. The Committee must consider the role of the magistrates, when deciding the salaries, benefits and allowances. The consideration must be rational and reasonable. Under-payment of magistrates would discourage many individuals from following a career path as a magistrate. He also reiterated that it was incorrect for a Member of the Committee to argue against an overall increase, on the basis of improper conduct of a particular magistrate somewhere, or because “alleged misconduct”  was being investigated.

Association of Regional Magistrates South Africa (ARMSA) briefing
Mr H Louw, ARMSA Representative, briefed the Committee on the magistrates salary adjustments and progress made by the Department and the ICRPOB to resolve the magistrates’ grievances. Mr Louw explained in detail the provisions of the legislation which give power to the IRCPOB to make annual recommendations relating to the salaries, benefits, and allowances of, inter alia, magistrates.

The Lower Court Remuneration Committee (LCRC) was formed subsequent to a request, in May 2011, by the then-Chief Justice, to have a single committee to advise him on matters related to the salaries, benefits and allowances of the magistrates. When the LCRC met with the ICRPOB on 18 October 2011, it raised the disparities in salaries between the lower court judicial officers, members of the National Prosecuting Authority who held comparable qualifications, and others in the civil service.  The IRCPOB noted this disparity, and it undertook to do a preliminary investigation into the matter.

Prior to December 2012, ARMSA submitted its concerns to this Committee and the ICRPOB. However, during a meeting held on 12 December 2012 two of the commissioners present stated that they had never seen the 2012 submissions, so on this basis no meaningful engagement took place, and the ARMSA was, at the time of this briefing, still in the dark about what was being done by ICRPOB.

He summarised that the ARMSA grievances related to:
- the lack of proper engagement with the LCRC, prior to the publication of a draft recommendation by the IRCPOB
- the IRCPOB failure to comply with the statutory obligations
- a request to implement the principles set out in the 2007 first report
- the fact that magisterial salaries had to be determined by 1 April
- total lack of support that the magistrates received from the Department.

Mr Louw concluded his briefing by quoting Benjamin Franklin: “If you think that it is expensive to fund an effective and well trained lower court judiciary, imagine what it would cost not to have one.”

Mr Joemath indicated that the time constraints were against the magistrates. If their increased salary was not approved by 01 April 2014, their remuneration packages they were concerned about would not be paid, as this would effectively be entering into another financial year. The increase was needed due to the huge amount of work that magistrates engage in, in order to come to a reasonable, rational, and informed decision. A central part of this was legal research, but he added that magistrates lacked the essential tools of trade to do their jobs properly, such as laptops and internet connections. Where laptops were provided, they were fixed to the magistrate’s desk, so the magistrate was unable to research or type up judgments at home. Even for those who had personal laptops, internet connectivity was a problem. He submitted that an increase of 5% “was nothing compared to the real needs”.

Discussion
Mr Matila stated that when the Committee had rejected the 2012 recommendation by ICRPOB, it had also vehemently objected to the proposals in regard to the judges as well. The Committee called upon then-Chief Justice Moseneke to brief the Committee on these issues. He had challenged the Chief Justice on the apparent inequality in salaries, benefits, and allowances because he did not understand the differences between judges and magistrates. He suggested that, once and for all, the  Committee ought to sit down and resolve this burning issue, to reach equal and uniform salaries. This was not a simple issue to decide upon. The Committee should bear in mind that the judges were judges for life, whereas magistrates were not in the same position. They were poorly paid and this could not be tolerated. The Committee urgently needed to consider the magistrates’ grievances.

Ms Boshoff seconded Mr Matila in his assessment. She stated that the government was struggling to fight against corruption and crime, and the very organ of government that dealt with these issues was being mistreated. If the lower court judiciary was not taken care of, none of the other ills besetting the country would be dealt with effectively.

Mr Gunda asked how these inequalities in salaries came about in a democratic dispensation founded on the principle of equality. He reiterated that the very Parliament who preached equality seemed to be reluctant to apply the principles. He urged that this Committee must, before 1 April, sit specifically to consider these grievances, and come up with a satisfactory conclusion. This country was still twenty years behind the developed world and this was another challenge to the Committee. If the Committee would not consider this matter within a reasonable time, he solemnly indicated that he would take the matter forward in his own capacity.

Mr Govender said that he was humbled by the response he received from the members of the Committee. The issue of magistrates’ productivity was of crucial concern. Magistrates, if they were continuously worried about their position, would not produce good quality work. He raised other issues related to the tools of trade that magistrates required to make them more productive. Firstly, he noted that many worked in disadvantageous environments, for example, without air conditioners, without desktops or laptops, or in small offices. He reiterated that any laptops that were provided by the Department were fixed on to the desks and could not be taken outside of the office. Judges were provided with their gowns, but the magistrates had to buy their own gowns, from the small salary that they received, and despite the fact that it was a requirement of the job.  These were but some of the frustrations faced by the magistrates. He pleaded that magistrates and judges ought to be treated the same in respect of their tools of trade.

Mr Matila stated that the way forward to resolve these issues was for the Department to raise funds because the Committee agreed with JOASA and ARMSA that magistrates were underpaid. The Committee ought to turn this around. He suggested that matters relating to funding of the lower courts’ judicial officers should not appear on the agenda again and thus must be urgently resolved.

The Chairperson thanked all members for their contributions, and suggested that IRCPOB should be asked to brief the Committee also when the Committee next dealt with the matter. Meantime, the grievances would also be communicated to the IRCPOB. It was necessary for the Committee to resolve this problem and move on to deal with other issues.

Mr Matila said that, in the meantime, the Committee would approve the 5% increase according to the draft notices, to ensure that it could be put into effect as an interim measure.

The meeting was adjourned.