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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
28 March 2003
PUBLIC PROTECTOR AMENDMENT BILL, JUDICIAL OFFICERS (CONDITIONS OF SERVICE) AMENDMENT BILL: BRIEFING
Chairperson: Adv J H de Lange (ANC)
Documents handed out:
Public Protector Act, 1994 (Draft) [reflecting amendments]
Constitution of the Republic of South Africa, Chapter 9
Public Protector Amendment Bill [B6-2003]
Vacation of office and discharge of Magistrates (Appendix)
Judicial Officers (Conditions of Service) Amendment Bill
News and Views for Magistrates, August 2002
The Committee was briefed by the Department of Justice on the Public Protector Amendment Bill. The Public Protector, established in terms of Chapter Nine of the Constitution, is independent and accountable to Parliament. The Amendment seeks to provide that Deputy Public Protectors, as is the case with Public Protectors, will be appointed by the President, but without the involvement of Parliament. This may contribute to the independence of Deputy Public Protectors, who may eventually become the Public Protector. The current Act provides that the relevant Cabinet Minister appoints Deputy Public Protectors. The Committee also considered the Judicial Officers (Conditions of Service) Amendment Bill and the procedure for suspending a magistrate.
Public Protector Amendment Bill briefing
Mr J Labuschagne, Department of Justice, presented the amendments to the Public Protector Act, 1994.
The new additions an insertion of Clause 2A into the Act after Section 2, which regulated the appointment, remuneration and other terms and conditions of employment, vacancies in office and removal from Office as Deputy Public Protector. This section in the Act, added Mr Labuschagne, formed the crux of the Bill and it envisaged a permanent committee which would deal with matters related to the Act.
Adv de Lange questioned whether the reference to committee was the same committee which dealt with appointments, salaries and so forth. Moreover, it seemed as if the understanding of "Committee" was unclear - he was not sure whether it referred to the Justice Portfolio Committee or an ad hoc committee. The idea has always been that it fell under the Justice Committee and therefore the Justice Committee and not an ad hoc committee, was the committee that dealt with relevant matters.
Nothing was mentioned about the removal of the Public Protector.
Mr Labuschagne stated that this was covered in the Constitution.
Mr J Jeffrey (ANC) commented that as set out in the Constitution, nothing seemed to prevent the National Assembly from appointing two persons.
Adv de Lange clarified that the intention has always been one person. The wording was, however, not clear in the Constitution.
He suggested that in Clause 2A (4) the words "not be reduced" ought to be removed
Sections 3 (2), (5) and (8) are repealed by Clause 3.
Mr Labuschagne asked Adv de Lange for guidance on Section 3 (11), which referred to remuneration.
Adv de Lange confirmed that remuneration should be approved by the National Assembly, as there has to be an authority that approves the salary.
Mr Labuschagne mentioned some anomalies with the salaries of judges and salaries for the National Director of Public Prosecutions (NDPP).
Adv de Lange explained that the issue of the salary system in the NDPP was a disaster emerging.
Mr Labuschagne mentioned the other new changes were merely consequential except for the transitional arrangements provisions found at the end of the document.
Adv de Lange pointed out that there was no deputy public protector appointed. Therefore, the transitional arrangements need to be removed.
He expected the amendments to be approved by 7 April 2003.
Mr B Magwanishe (ANC) noticed that a term of office for the Deputy Public Protector was not mentioned and should be added.
Adv de Lange concurred that a limit should be specified. However, this he agreed was a political decision that could be taken at a later stage. The options were 1) not renewable, 2) renewable, and 3) renewable, but not more than two terms.
Committee members debated the options and settled on a term for not more than seven years determined by the President and the Deputy could be appointed once more.
Judicial Officers Amendment Bill briefing
Mr J de Lange highlighted the amendments in the Judicial Officers Amendment Bill. Clause 1 had seen the addition of the word " entitled" in Section 1 of the Magistrates Act, 1993, as it was more appropriate.
Section 12 of the Magistrates Act will be substituted in toto.
Adv de Lange suggested that Clause 2 (3) amending Section 12 of the Magistrates Act, should be deleted. The word "and" should be inserted between (i) and (ii) in Clause 2 (3)(c). He questioned Clause 2 (7) and wondered whether this was a transitional arrangement as it was a remnant from the past.
Clause 8 replaced Section 2 of the Judges Remuneration and Conditions of Employment Act 47 of 2001. This Clause related to the annual salaries of Constitutional Court judges and judges.
Adv de Lange asked whether magistrates also had a provision that permitted an allowance of R3500 per annum, referring to Section 2 of the Act. He suggested that the words in Clause 8 (2) (1)(a) "in addition to the amounts referred to in section 13" should be removed. Likewise, the words in the same clause "and an allowance at the rate of R 3 500 per annum" be removed as well.
Mr de Lange explained that judges were sensitive to the issue of R 3 500 and there was, ostensibly, a sad history to its inclusion.
Adv de Lange had problems with the provision that the President does not tax this allowance. But he agreed to leave it in for fear of further problems arising in the future. He also suggested that subclause 2(3)(a) should be removed form the Magistrates Act as well.
A recusal clause must be added to Clause 4, he suggested.
Mr de Lange replied that a recusal clause existed specifically for judges.
This was insufficient, rebutted Adv de Lange, as there should be a general clause as well. He was concerned that a case may arise where a matter discussed involved a judge who was present. Therefore, a recusal clause similar to the one for judges should be inserted.
Mr de Lange highlighted the several changes in Clause 5.
In Clause 5 (4) the word "annually" should be deleted, recommended Adv de Lange.
Moreover, he added that salaries should be considered within the budget as the Constitution refers to "available resources".
Mr de Lange highlighted that the amendments in Clause 7 took cognisance of same sex partners and this provision specifically referred to "only one" partner. This provision was relevant for the purposes of pensions only.
Adv de Lange asked for an explanation of "pro-rata" in Clause 9
The intention, replied Mr de Lange, was to stipulate equal division between spouses.
Adv de Lange suggested that this should be done in terms of an agreement similar to registration. This Bill must make it clear that it is a transitional provision so that it regulates interim arrangements.
Mr de Lange was not quite clear about the terminology to be used. The idea was to be an amount that was equally divided, unless the judge has lodged an agreement indicating otherwise.
Adv de Lange suggested that he consult insurance laws for guidance.
He also recommended that the words "de-registration" should be placed after "not more than one person" and add "the deregistration of such person as a partner of a magistrateâ€¦" in Clause 11 (A). This should be read together with clause X under "Options in Respect of Magistrates", which will insert Section 15A in the Magistrates Act, 1993.
Referring to the Transitional Provisions in Clause 12, Adv de Lange stated that he did not think everything was captured here. Therefore, the Department would have to go back to the Magistrates Act and the Judges' Remuneration and Conditions of Employment Act and use the words set out there.
He also noticed a date of commencement was not stipulated. He emphasised that this Committee had commenced a practice of specifying a date of commencement or stipulated that the President may state an earlier date of commencement.
"Vacation of office and discharge of magistrates" briefing
Adv de Lange examined the amendments to the suspension, vacation of office and discharge of magistrates. In terms of Clause 13 (3) (a)(i) and (ii) a magistrate may be given an opportunity to be heard and secondly an investigation into the magistrate's fitness for office is instituted. Referring to the latter, he questioned whether the Commission was using the "reliable evidence" test.
He suggested that Mr de Lange find a mechanism to charge a person within 30 days and to add a clause to ensure that there is some follow-up. He should also find words that were stronger than "as soon as possible". Considering Clause 13(4), a clause must be included that would permit Parliament to terminate a suspension at any stage on the basis of the stipulated report.
The meeting was adjourned.
NB: See Annexure for par  to  of Van Rooyen judgment
"Vacation of office and discharge of magistrates
13. (1) A magistrate shall vacate his or her office on attaining the age of 65 years: Provided that-
(a) the Minister may, after consultation with the Commission, allow a magistrate-
(i) who, on attaining the age of 65 years wishes to continue to serve in such office; and
(ii) whose mental and physical health enables him or her to do so,
to continue to hold such office for the period that the Minister may determine; and
(b) if he or she attains the said age after the first day of any month, he or she shall be deemed to attain that age on the first day of the next ensuing month.
(2) A magistrate shall not be suspended or removed from office except in accordance with the provisions of subsections (1), (3), (4) and (5).
(3) (a) The [Commission may provisionally] Minister, on the advice of the Commission, may suspend a magistrate from office pending an investigation by the Commission into such magistrate's fitness to hold office.
(aA) [The Minister may confirm such suspension if] If the Commission recommends that [such] a magistrate be removed from office-
(i) on the ground of misconduct;
(ii) on account of continued ill-health; or
(iii) on account of incapacity to carry out the duties of his or her office efficiently,
the Minister must suspend that magistrate from office or confirm the suspension referred to in paragraph (a).
(b) A magistrate so suspended from office shall receive, for the duration of such suspension, no salary or such salary as may be determined by [the Minister on the recommendation of] the Commission.
(c) A report in which the suspension in terms of paragraph (aA) of a magistrate and the reason therefor are made known, shall be tabled in Parliament by the Minister within 14 days of such suspension, if Parliament is then in session, or, if Parliament is not then in session, within 14 days after the commencement of its next ensuing session.
(d) Parliament shall, within 30 days after the report referred to in paragraph (c) has been tabled in Parliament, or as soon thereafter as is reasonably possible, pass a resolution as to whether or not the restoration to his or her office of a magistrate so suspended is recommended.
(e) After a resolution has been passed by Parliament as contemplated in paragraph (d), the Minister shall restore the magistrate concerned to his or her office or remove him or her from office, as the case may be.
[(4) The Minister shall remove a magistrate from his or her office if Parliament passes a resolution recommending such removal on the ground of misconduct of the magistrate or on account of his or her continued ill-health or his or her incapacity to carry out his or her duties of office efficiently.]
(5) (a) The Minister may, at the request of a magistrate, allow such magistrate to vacate his or her office-
(i) on account of continued ill-health;
(iA) in order to effect a transfer and appointment as contemplated in section 15 (1) of the Public Service Act, 1994 (Proclamation R103 of 1994); or
(ii) for any other reason which the Minister deems sufficient.
(b) Any request of a magistrate contemplated in paragraph (a) (ii) shall be addressed to the Minister so that he or she receives it at least six calendar months before the date on which the magistrate wishes so to vacate his or her office, unless the Minister approves a shorter period in a specific case.
(c) If a magistrate-
(i) is allowed to vacate his or her office in terms of paragraph (a) (i), he or she shall be entitled to such pension benefits as he or she would have been entitled to under the pensions Act applicable to him or her if his services had been terminated on the ground of continued ill-health occasioned without his or her being instrumental thereto; or
(ii) is allowed to vacate his or her office in terms of paragraph (a) (ii),
he or she shall be deemed-
(aa) to have been removed from office to promote efficiency for reasons other than his or her own unfitness or incapacity; or
(bb) to have been retired in accordance with section 16 (4) of the Public Service Act, 1994 (Proclamation 103 of 1994),
as the Minister may direct, and he or she shall be entitled to such pension benefits as he or she would have been entitled to under the pensions Act applicable to him or her if he or she had been so removed from office or had been so retired, according to the direction of the Minister.
(6) For the purpose of a transfer and appointment contemplated in section 15 (1) of the Public Service Act, 1994, a magistrate shall be deemed to be holding an appointment in an institution as contemplated in that section.
(7) The period of service as a magistrate of a magistrate transferred and appointed under section 15 (1) of the Public Service Act, 1994, shall be reckoned as part of and continuous with his or her service in the public service for the purposes of leave, pension and any other condition of service.
"Suspension of magistrates pending investigation
 Since the Constitution makes provision for a judge to be suspended on the advice of the Judicial Service Commission pending its investigation, there can be no constitutional objection to a similar power being vested in the Magistrates Commission, pending an investigation by it into whether or not a particular magistrate is fit to remain in office.
 The fact that such a suspension takes place before the impeachment enquiry is held, is not necessarily open to objection. The nature of the allegation against the magistrate may, in itself, be so serious as to make it inappropriate for the person concerned to continue to sit as a magistrate while the allegation is being investigated. The Commission would have to have reliable evidence before it to warrant such action and it would have to conduct its affairs in a manner consistent with natural justice. If in the particular circumstances of the case its decision cannot be justified or if it has failed to comply with the requirements of natural justice, its decision would be liable to be set aside on review by the higher courts. That constitutes adequate protection against any possible abuse of this power.
 It follows that section 13(3)(a) is not inconsistent with judicial independence and that the appeal relating to this section must be upheld."