Magistrates grievances: progress report; Legal Aid South Africa Bill: Department of Justice briefings, in presence of Minister

Meeting report

The Chairperson welcomed the Minister of Justice and Correctional Services, and representatives from the Department of Justice and Constitutional Development (DOJ&CD) to the meeting.

Magistrates' grievances: Department's progress in resolving issues
Mr JB Skosana, Deputy Chief State Law Advisor, Department of Justice and Constitutional Development, said that his presentation would firstly outline the current  legislative regime for the remuneration of Magistrates with specific focus on pension and medical aid benefit. There had been a request from the Magistracy and Judicial Officers Association of South Africa (JOASA) for the pension and medical aid benefits dispensation of magistrates to be aligned to that of judges. He would also highlight the consultation with the relevant stakeholders and give some general views and comments from a policy perspective and the recommended approach to the matter.

Mr Skosana presented a brief profile of the magistracy, highlighting that it comprised of 2 026 posts, of which 397 are vacant. Of these, 311 had been advertised and processes to fill them were under way. He said of the filled posts, 60% were black and 40% white. He then outlined the remuneration total packages of the magistracy. Mr Skosana then discussed the statutory provisions, which were contained in the Independent Commission for the Remuneration of Public Office-Bearers Act, 1997 as well as the Magistrates Act, 1944, in section 2(1). Both Acts outlined the remuneration benefits and allowances that applied under the current dispensation. He also highlighted section 18 of the Magistrates Act as providing for transitional provisions and savings. Under Section 16 of the Magistrates Act, the Minister was empowered to  make regulations in relation to membership or conditions of membership of a particular medical aid scheme, for example.
 

He then looked at a comparative benefit analysis, between a magistrate and a judge, and outlined the overview of the judges’ remuneration dispensation in respect of pension and medical aid benefits. In this regard he made reference to the Judges Remuneration and Conditions of Service Act of 2001 (see attached presentation for full details).

The DOJ&CD had held consultations with the lower courts' officers and judiciary. One of the major conclusions from those consultations was that the continuing remuneration model of judges (salaries for life) being applied also to the magistrates would require a major policy shift and would place insurmountable burden on the state.

Mr Skosana set out some of the recommendations (see attached presentation) , which included the amendment of the relevant positions of the Magistrates’ Act and regulations made under that Act.

In his concluding remarks he said that the process by which the Parliament was to approve the salary increases created unnecessary tension.

Mr Mike Masutha, Minister of Justice and Correctional Services, briefly added to the presentation by asking why there was mention of split judiciaries, when all along it had been said that there was a need for a single judiciary. He said there were obviously questions of structure that needed to be addressed, but that there was not unanimity within the profession. He said that salaries would always be a disputed matter, as a result.

Mr Masutha also mentioned that the DOJ&CD was in the process of appointing new judges.

Discussion

Mr G Michalakis (DA, Free State) asked what the effect of the reforms would be on the budget of the Department. He also asked, if the office was fully functional or operational by next year, what the role of that office would be in negotiating those salaries.

Ms G Manopole (ANC, Northern Cape) asked whether perhaps a proportional allocation  had been considered and/or explored. She asked if the Occupation Specific Dispensation (OSD) was having any practical implication on the Department. She also wanted to know whether or not the DOJ&CD would be consulting with the Department of Public Service and Administration (DPSA).

Ms T Wana (ANC, Eastern Cape) said that she was frustrated by the Magistrates Act of 1944. She said that the Act, along with other similar acts of the apartheid era, were stopping the country and the profession from moving forward. She asked how it was possible that a certain percentage of funding would be allocated to a person who gave no direct input into the economy of the country. She highlighted that magistrates did not directly make any monetary contribution to the economy. She wanted a fuller analysis of these kinds of issues. She felt that part of the problem was that the question of salaries had not been considered as an integral part of the new dispensation, because everything was still being based on the Magistrates Act of 1944. She asked what the input of a person who was a magistrate before 1994 would be, in the current dispensation.

Mr S Thobejane (ANC, Limpopo) said that the issue was quite complex. The current scenario was one where the magistrates essentially played out a double role; partially as a civil servant and partially as a public office bearer. This situation created double benefits. He said that there was a need for some serious political decisions to be made, and to decide where to categorize these issues. He said that there had to be a level of compromise between the three independent spheres of government, in order to adequately address the problems. He cited the example of the institution of Traditional Leadership, which was falling into the  same trend, and how he had witnessed this first hand because he served also on the committee dealing with this matter. He therefore suggested that perhaps there was a need to consider moving some functions into another department, or splitting functions. He asked that a check be done on whether the fiscus would be able to sustain the current scenario of having magistrates enjoy "double benefits" in line with their position, and whether the State had enough capacity. He believed that the situation of magistrates had been switched over, as convenient and most beneficial to them, and suggested that perhaps it would be useful to set up a task team or other body to carry out intensive investigations.

Mr L Nzimande (ANC, KwaZulu Natal) asked of the final decision which was to be put to the Court pertaining to the magistrates' salaries. He felt that this discussion would have been more fruitful had the Committee been told, upfront, what the final determination of the President and executive were likely to be. He was very concerned also with what the DOJ&CD was doing in the meantime, asking whether it had been working on the issues progressively to make sure that the necessary corrections were made, and asked for more detail on the current stage of that process.

Minister Masutha first addressed the issue about closing the gap, by saying that this would always be a subject of heated debate. He said the complexity was that rights and interests were in conflict at times, and the various parties seemed to be always engaged in a “dance” of some sort. The question was whether negotiations must continue, or whether at some stage it would be necessary to take a principled decision and impose a certain regime. He believed that this was in fact a process that involved different levels of negotiation between the magistracy, Parliament and other actors. He said the Department and judicial officers "were in this together" and thus had to work hand in hand.

In terms of the issue on independence, he said that both the prosecutorial and magisterial services should be treated the same. There was also another issue, of how salary benefits pitted the work of one against the work of the other. Several checks were being conducted on all candidates who applied to the Bench. In particular, questions would be asked of the candidates about why they were applying to become a magistrate, as at a certain point in their careers, the prosecutors were actually better off continuing with prosecutorial jobs, as their promotion was more likely to be guaranteed, compared to those appointed as magistrates. This question was therefore key in the assessment process and was a useful filtering mechanism. He also pointed out that a person who had been a magistrate for many years would not automatically qualify to be appointed as a judge in the higher court. Assumptions on career progression between the lower and higher courts were not always correct. He also addressed the issue of notches of salary, and said that he was not aware of a notch system that applied in the judiciary. A judge was a judge; and the question of notches or levels applied to employees in the public service, but not to the judiciary.

Commenting on the remarks about the lack of direct economic contribution, Minister Masutha  said that the salaries of any profession would and could always be debated. However, he stressed that there was no economy that could function without a functional judicial system. He gave a simplified example of the need of a judicial system in every country, by highlighting the role it played in protecting citizens.

Ms Wana responded  that she was simply highlighting a problem that needed to be discussed by the Committee, and therefore requested that her question be respected as she wanted to get an appropriate answer.

Minister Masutha apologised to Ms  Wana, saying that whilst he had answered the question briefly, he had not intended in any way to under-play the problem or the importance of the matter.

He said that in regard to OSD, he did not have any specifics at the moment, but invited the Departmental representatives to engage further with the Committee on that point.

Minister Mashutha said that whilst the Office of the Chief Justice was an administrative entity, it was unlikely that the Chief Justice himself would be involved in the issue.

He assured the Committee that there would be a balanced and appropriate view of the implications of reform on the budget of the DOJ&CD, and said that all the implications would be taken into consideration from a practical point of view.

The Chairperson noted that there was little time left for any more questions.

Briefing by Legal Aid South Africa on the Legal Aid South Africa Bill
The Chairperson reiterated that the Committee was running short on time, and said that questions arising from the briefing would need to be addressed to, and answered by the Department in writing. He asked that the presenters highlight only the essential points on the Legal Aid South Africa Bill (the Bill).

Ms Wilma Louw, State Law Adviser, Department of Justice and Constitutional Development, began her presentation by giving a brief background on Legal Aid in South Africa, noting that Legal Aid South Africa was regulated by the Legal Aid Act of 1969, which was outdated and required revision in its entirety. She also outlined that the main purpose of the Bill was to officially establish an entity called Legal Aid South Africa, with a Board of Directors, and to define its objects, powers, functions, duties and composition.

She noted the time constraints and said that she would only highlight the essential elements of each clause very briefly, referring Members to the more detailed presentation for a full outline.

Clause 1  contained the definitions, and she pointed out that the Legal Aid Act (the Act) only presently defined "Board" and "Minister". Clause 2 dealt with the establishment of Legal Aid South Africa, as a national public entity.  Clause 3 dealt with the objects of Legal Aid South Africa, which included the provision of legal representation to persons at State expense

Clause 4 set out the powers and functions of the Legal Aid South Africa Board (the Board), which included the employment or legal practitioners, candidate attorneys and paralegals in private practice. Clause 5 covered the need for independence and impartiality, which included the fact that Legal Aid South Africa personnel must exercise their powers, duties and functions in good faith and without fear, favour, bias or prejudice.

She then summarised the remaining clauses, which were taken from the current Act, and dealt with the same matters.

The Chairperson noted that Members should submit any questions in writing, and noted that the meeting had to be brought to a conclusion as another committee was due to occupy the venue.

Other business: Adoption of Committee Minutes
Members engaged briefly with the minutes of previous meetings, making the necessary corrections, before agreeing to their adoption

The meeting was adjourned.