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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
17 March 2003
JUDICIAL OFFICERS (CONDITIONS OF SERVICE) AMENDMENT BILL: BRIEFING
Chairperson: Adv J H de Lange
Documents handed out:
Judicial Officers (Conditions of Service) Amendment Bill
The Committee was briefed on the Judicial Officers Amendment. The Committee focused on the procedure for setting judicial officer's salaries. The definition of 'salary', the composition of the Independent Commission for the Remuneration of Public Office Bearers, and the rights of a heterosexual or same-sex life partner were also discussed.
Legislative drafter, Mr Johan de Lange, explained the changes to judicial officers' salaries proposed in the Judicial Officers (Conditions of Service) Amendment Bill. The Bill amends the Magistrates Act, 1990, to further regulate the salaries of magistrates, the Independent Commission for the Remuneration of Public Office-bearers Act, 1997 in order to extend the definition of "office-bearer" to include judges and magistrates. It also extend the functions of the Independent Commission for the Remuneration of Public Office-bearers. The Bill amends the Public Finance Management Act, 1999, in order to add the salaries and allowances paid to magistrates to Schedule 5. Lastly it amends the Judges' Remuneration and Conditions of Employment Act, 2001, to for surviving spouses of judges in line with a decision of the Constitutional Court.
The Committee discussed the definition of 'salary' for judicial officers. Adv de Lange stated that salaries, allowances, and benefits should all be encompassed under the category of remuneration. Mr de Lange agreed that remuneration may be the proper term.
The Amendment bill deleted Subsections three and four of Section 12 of the Magistrates Act, because they were found unnecessary.
The Chairperson declared that when the President changes the salary of judges and magistrates, he should table a report in Parliament for the legislature's consideration.
A list of predetermined factors should be used for consideration by both the Independent Commission for the Remuneration of Public Office-Bearers and the President when setting salaries. The Commission must look at affordability when deciding the salaries. State resources should be a critical determining factor. The Chairperson noted that some magistrates and judges would like their salaries set without regard for the budget.
Mr J Jeffery (ANC) asked how the Commission would be able to determine the amount the state could afford.
The Chairperson replied that they would have to check with Treasury. The provision will force the Commission to consider the issue of affordability. The factors must apply to the Commission's recommendation and the President's decision.
Mr Jeffery asked if magistrates had the right to strike.
The Chairperson answered that they did not.
Mr Jeffery pointed out that the factors to be used for the consideration of salaries were listed in Clause 8.
Oversight over salary increases
The Committee began discussing Parliament's oversight over salary increases. The Bill stipulated that the Commission and the President needed to report to Parliament annually concerning salary increases for public officials.
The Chairperson felt that the term 'annually' posed a problem because it did not specify when the recommendation had to be reported. As the Bill is currently drafted, if a salary was increased in February it could not be reported until December of that year. Upon recommending an increase in salary, the Commission should publish the recommendation in the Gazette. The President should make his proclamation and then table it in Parliament.
Adv M T Masutha (ANC) noted that the word 'published' was the critical word. Not only did the information have to be published, but published soon after becoming available.
Adv de Lange instructed Mr de Lange to remove the word 'annually' from Clause 5, amending Section 8(4) of the Independent Commission for the Remuneration of Public Office-bearers Act, 1997, because the term caused confusion. The wording should declare that a recommendation should be reported to Parliament as soon as it is made.
Mr Jeffery summarised the way the Committee envisioned the new system to work. The Commission would make recommendations for salary increases and would publish this in the Gazette. Commission would then report the recommendations to Parliament. The President would decide the salary and table it in Parliament.
The Chairperson pointed out that although the recommendations may be made at different times for different public office-bearers, the salary adjustment must be recommended once per year.
Mr Jeffery asked if a Commission of seven people would sufficiently perform the tasks asked of them. He suggested that the Committee might consider raising the number of people on the Commission.
The Chairperson added that if someone recused him or herself, the number would be down to six. The Committee agreed to amend the Bill so that the Commission would be comprised of eight members.
The Chairperson asked Mr de Lange if the Bill clearly stated when a member of the Commission should recuse himself. Mr de Lange answered that Section 4 of the Independent Commission for the Remuneration of Public Office-Bearers Act detailed those that would not qualify as members of the Commission.
The Chairperson stated that the proviso did not eliminate all conflicts of interest. A retired judge could be a member of the Commission, as he is not an office-bearer, but his salary would be affected by the Commission's decision. There should be a specific proviso that a member should not consider a decision that would affect him or her.
Mr Jeffery agreed and stated that a conflict of interest could arise if a spouse was directly affected by the Commission's recommendation. The Chairperson stated that a general conflict of interest clause should be included in the Bill and a member should sit out of discussions when an issue affects that person directly or indirectly.
The Chairperson stated that Clause 6, assuring judges that salaries may not decrease, should be removed as it was unnecessary.
Mr de Lange replied that it was included because he could not foresee their salaries being reduced. The Chairperson stated that this was exactly why the Clause was unnecessary.
The Chairperson questioned why Clause 3 had been removed from the Bill. The role of Parliament was still essential and must be kept. Perhaps the role of Parliament may be changed later when the judiciary is unified, but the role of Parliament has been found to be constitutional. It must be part of the Bill.
The Chairperson argued that Clause (5)(4)(c) should not apply to judges and magistrates and should be amended.
Judges and magistrates salaries
The Committee discussed judges and magistrates salaries. The wording of the Bill, with salary, annual salary, allowances, and benefits all used, was too confusing. The Chairperson argued that 'remuneration' should be used to cover all of the categories of salary.
The Chairperson stated that Clause 12, the Transitional Provision, was the link that would smoothly implement the Bill. The salaries presently accrued will exist as if they were devised by the new system.
The Committee turned to Clause 7, amending Section 1 of the Judges' Remuneration and Conditions of Employment Act, 2001, which defined 'partner' as "a person with whom an unmarried Constitutional Court judge or judge was, at the time of death, engaged in a permanent heterosexual or same-sex life partnership." The Bill further states that the partner and the judge must have undertaken reciprocal duties of support and that the partner must be registered with the Director-General: Justice and Constitutional Development for the purposes of the Bill.
The Chairperson felt the need to clarify that the Bill was only defining a term. It was not bestowing rights. This is not a substantive clause, but a definition clause. The Committee did not wish to create a constitutional problem.
Adv Masutha agreed that the aim was not to create, but to acknowledge. This area of the law was relatively new. He asked what would happen in a situation where a judge died and left two widows behind. Which widow was entitled to the benefits? The government could not calculate the amount of time spent in marriage and decide in that fashion.
Adv de Lange asked what would happen if one partner was heterosexual and the other was homosexual.
Ms S Camerer (NNP) noted that a partner was a partner and that it should not matter.
Mr de Lange asserted that the Law Commission was attempting to regulate these problems by amending current legislation to render it consistent with judicial findings. The Chairperson stated that the Committee would act independently and, if need be, amend the Bill later.
Adv Masutha asked what would happen if two partners were left after a judge died and the first one brought the second one to court arguing that the second person did not qualify as "permanent" partner.
Mr de Lange explained that the Bill declared a judge may only register one partner. The registered partner would have the legal right to benefits.
Mr S Swart (ACDP) agreed that the registration and de-registration process would take care of any confusion.
The Chairperson noted that in the case of multiple marriages, it was the spouse at time of death that received the benefits. The length of the relationship did not matter.
The Chairperson concluded the discussions and informed Committee members that they would discuss suspensions of judges briefly the following day.
The meeting was adjourned.