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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
8 April 2003
CRIMINAL PROCEDURE AMENDMENT BILL; JUDICIAL OFFICERS (CONDITIONS OF SERVICE) AMENDMENT BILL: DELIBERATIONS
Chairperson: Adv J H de Lange (ANC)
Criminal Procedure Amendment Bill [B57-2002]
Working Draft of Criminal Procedure Amendment Bill
Judicial Officers (Conditions of Service) Amendment Bill
Proposed Amendments to Independent Commission for the Remuneration of Public Office-Bearers Act 92 of 1997 (Appendix)
Satchwell Judgement - 17 March 2003
Deliberations on the Criminal Procedure Amendment Bill focused on the three options concerning which materials a magistrate must review upon receiving a petition, but the Committee postponed their decision.
In the Judicial Officers Amendment Bill, the Committee discussed the change of the definition of spouse as explained in the Satchwell judgement and decided to define remuneration as salaries, allowances, and benefits. They focused on the proper method for judicial input into salary issues, and decided that the Chief Justice should be required to make a recommendation to the Independent Commission for the Remuneration of Public Office-Bearers on behalf of the entire judiciary. Besides remuneration of office bearers, benefits accruing to spouses and partners and suspension of judicial officers were also considered. The proposed Bill would come into effect in July of this year.
Criminal Procedure Amendment Bill
Adv de Lange reminded members that the Committee had completed yesterday's meeting by deciding to break up 309C(1) into two or three sections.
The Committee turned to 309C(3), which pertained to the materials a magistrate must review upon receiving the petition. Three options of the section were drafted for the Committee to decide upon. In all three options the application concerned and the magistrate's reasons for refusal of the application were included. Option one specified that the record of proceedings in the magistrate's court must go to the court of appeals. Option two stipulated that the judgement was sufficient but that the entire record will be given to the judicial officer upon request. Option 3 stated that the court of appeal would automatically obtain a copy of the entire record except in certain cases. Even in those cases, however, the judicial officer would be able to request the entire record.
Adv de Lange stated that they would leave the three options and decide later, but added that he was leaning toward the third option.
Adv de Lange explained that in 309C(4) "two judges" was changed to "a judge" because it is not necessary for two judges to decide the leave for appeal.
The Chairperson reviewed 309C(5) and noted that subsection (b) gave a judge the power to order that a petition be argued before the court.
With regard to 309C(5)(c)(i), (ii) and (iii), Adv de Lange argued that the sections did not correspond correctly to one another. He asked what would happen if sections (i) and (iii) could both be applied.
Mr H du Preez answered that he would have to look into that.
Adv de Lange stated that 309C(5), as presently configured, was confusing and did not provide the foundation for legal certainty. He added that perhaps a clause should be added stating that the decision of the court of appeal was final. He instructed Mr J de Lange to redraft (5) and suggested that he utilise people in his Department who have experience with the Criminal Procedure Act.
With respect to 309C(6), Adv de Lange suggested that since the only hearing mentioned in the Bill was the hearing a judge may request for the petition, the wording "for any hearing" is unnecessary and should be changed.
Judicial Officers (Conditions of Service) Amendment Bill
Adv de Lange asked Mr J de Lange to review the Satchwell opinion.
Mr J de Lange brought the Committee's attention to the court order at the end of the case which called for the wording "spouse or partner, in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support." This wording was consistently used in the opinion and would be used throughout the Bill.
The Chairperson brought the Committee's attention to the Judicial Officers (Conditions of Service) Amendment Bill and expressed concern about the definition of "salary" as defined in Clause 1. 'Remuneration' was supposed to be defined as salaries, allowances, and benefits. Salary must not be defined this way.
It was decided that Clause (2)(1)(c)(ii) would be deleted.
Adv de Lange suggested that the Bill should designate a person, perhaps the Chief Justice, to make formal submissions to the Independent Commission for Remuneration of Public Office-Bearers on behalf of all judges and magistrates. He added that others could submit if the Commission allowed them to, but one person should submit for the entire judiciary.
Ms F Chohan-Kota (ANC) stated that she had a problem with a process that would allow any judge to make a submission regarding issues of remuneration.
Adv de Lange argued that the Committee could not prescribe the process. It is up to the Commission to allow the submissions. They create their own rules. They must take into consideration a recommendation by the Chief Justice on behalf of the entire judiciary.
Ms Chohan-Kota suggested that the Bill must stipulate that all submissions be channelled through the Chief Justice.
Adv de Lange came to agree with Ms Chohan-Kota and instructed Mr J de Lange to draft a clause bestowing responsibility to the Chief Justice to make a unified submission on behalf of the judiciary. If magistrates want to close the salary gap, they will have to work within the judiciary.
Adv M Masutha (ANC) stated that members of the Judiciary always raise questions concerning salaries. He asked if the Committee was the appropriate forum for discussing salaries of the judicial officers. He asked if remuneration was always on their minds.
Adv de Lange answered yes. He suggested that the Committee might want to consider the prohibition of certain conduct of magistrates and judges. Many magistrates think that they can strike and seem to define themselves as employees when it is to their benefit. They are clearly not employees, as they do not fall under the Labour Relations Act. The time may come for the Committee to prohibit specific actions of magistrates and judges. In Canada, members of the judiciary cannot strike and cannot discuss matters regarding to salary.
He alerted the Committee to an article which explained that federal court judges in the United States, "the so-called greatest democracy in the world", received one cost of living adjustment in 1998. That represented the only raise in salary since 1993.
Adv Masutha noted that for such a noble profession it is unfortunate that judicial officers bargain and "wheel and deal". It may not be prudent for the judiciary to make representations for the salary process. The inclusion of the Chief Justice in the process of remuneration may thrust the Chief Justice into the undesirable situation of being perceived as a bargaining union.
Adv de Lange agreed with the sentiment of what Adv Masutha stated, but he noted the need to give the judiciary some direction. Parliament makes a representation on their salaries; the judiciary should be given the same opportunity. The Chief Justice, along with the Minister and Cabinet member, must submit representations to the Commission for consideration.
The findings of the Commission must be tabled in Parliament. He pointed out that he has never seen such a tabling in Parliament proclaiming the remuneration. The Department should rectify this. He asked if Parliament could disapprove of parts of the proclamation.
Mr J de Lange stated that the entire proclamation or any provision could be disapproved.
It was noted that upon disapproval, Parliament would be able to make a recommendation.
The Committee decided that between sections 2(1)(c)(i) and 2(1)(c)(ii) the "and" should be replaced with "or".
The Committee turned their attention to Clause 6(a), which defined office-bearer. Adv de Lange suggested that "Traditional Leaders" be taken out in favour of the designation "Chiefs". He asked Mr J de Lange to redraft Clause 6 and organise the definition of office-bearers into various levels according to local, provincial, and national categories. He noted that these were just small technical adjustments to make the clause clearer.
He informed the Committee that they would discuss the Commission when they reconvened.
Proposed Amendments to Independent Commission for the Remuneration of Public Office-Bearers Act 92 of 1997
Adv de Lange (the Chair) drew the attention of the Committee to clause 3(5) of the Bill. It provided that, if the chairperson is absent or for any reason unable to act as chairperson, the deputy chairperson shall act as the chairperson of the Commission. Adv. J de Lange asked as to what would happen if both Chairperson and Deputy Chairperson were judges. He then proposed that the clause be structured in such a way that in the absence of both, the Commission would be able to elect someone to chair.
Adv de Lange referred to clause 8(3) of the Bill and proposed the insertion of the words "Chief Justice" or "any person designated by him or her" instead of "the Secretary to the Judiciary Service Commission" so that any information obtained from the Parliament could be processed through the office of the Chief Justice. He noted that would avoid giving a role to the JSC that had not been provided for under the Constitution as he was of the view that the role of the JSC was either to appoint or advise the President in the appointment of the Judicial Officers.
The Committee considered clause 8(3A). Adv de Lange proposed that the words, "salary", " allowance" and "benefit" be subsumed under the word "remuneration". The word "remuneration" would apply mutandis mutandis in clause 8(3B) of the Bill.
The Committee moved to consider clause 8(3B)(b), which provided for the exclusion of an office bearer when it comes to salaries or any matters that relate to the interests of Judges and Magistrates.
Mr J de Lange (the Legislative Drafter) conceded that in terms of the definition in the existing Act, an office bearer could not be a member of the Commission that was why that exception had been created.
Adv de Lange (Chair) added that because there would be no judge or magistrate in respect of matters that relate to a conflict of interest, the membership of the Commission had been increased by one member (from 7 to 8).
Adv J de Lange (Chair) asked if the drafters could not try to put something more specific in Clause 3(1), the provision dealing with the constitution of Commission, to the effect that one person with the general expertise relating to the functions and the four different categories of office bearers could be included in the Commission. He requested Mr J de Lange (the Legislative drafter) to make a resolution stating that there were now four categories of officer bearers and that the Committee had included a clause that excluded them from participation when were being discussed. Furthermore with future appointments there would be at least people with general knowledge of Magistrate salaries as members of the Commission.
Mr J de Lange (Drafter) noted that as there would be a legal lacuna, could the drafters provide for a transitional provision for the purposes of filling of casual vacancies.
Adv de Lange (Chair) agreed that it was legally necessary to provide for a transitional provision.
Dr Delport (ANC) made reference to Clause 4 and noted that one could not be a member of the Commission if one fell under category (a), (b), (c) or (d).
Adv de Lange (Chair) proposed that in Clause 4(a) the word "person" be replace by words "Chairperson" and "Deputy Chairperson" so as to clearly show that the provision was specifically referring to a judge. He was of the view that such an amendment be effected only to Clause 4(1)(a).
He suggested that five categories of office bearers from National, Provincial, Local, Judges and Chiefs be created.
Ms Chohan-Kota (ANC) asked for clarity on Clause 4(1)(a). She was of the view that the resolution on that clause should not exclude certain members of the National Assembly and members of the NCOP to serve on the JSC. She proposed that some degree of participation by people with knowledge on judge's remuneration - and she made mention of judges - since people with general knowledge on the salaries of judges were not readily available. Hence Clause 4(1(a) had to exclude Members of Parliament and then provide an exception for those who had particular knowledge on the salaries of judges.
Adv de Lange (Chair) replied that it was easy to draft that provision to that effect but there could be unintended legal consequences. However he assured Ms Chohan-Kota the drafters would consider that proposition.
The Committee considered Clause 8(6). Mr J de Lange (Drafter) noted that the factors listed in that clause had been borrowed elsewhere and the following factor was not included: the need to promote equality and uniformity of salaries for equal work performance. He asked the members to consider that factor for the purposes of the Bill.
Adv de Lange (Chair) was of the view the importation of that clause create a number of complications as that factor would boil down to issues of experience, the way a person handled specific work. Hence he proposed that it be left out.
Judicial Officers (Conditions of Service) Amendment Bill
Issues dealing with remuneration
Adv de Lange (Chair) noted that this was a salary mechanism clause.
Clause 12 Substitution of Section 2 of Act 47 of 2001
Adv de Lange was concerned that in s(2)(5) there was no definition of the annual salary within the context of that provision. He was of the view that there was no clear distinction between allowances and benefits.
Mr J de Lange's reply was that "annual salary" had to be interpreted within the context of calculations as contained in the Act.
Adv de Lange (Chair) pointed out that the definition of annual salary had to be interpreted narrowly as compared to s(2)(1)(a), because annual salary in the context of s(2)(5) excluded benefits. He asked the drafter that the amendment be drafted to that effect.
Adv de Lange proposed the use of the word "disapproves" instead of "rejects" in s2(3).
Issues dealing with same sex partners
Clause 4 Insertion of section 15A in Act 90 of 1993 (Equal benefits accruing to spouses and partners of magistrates)
Adv de Lange (Chair) conceded that Clause 4 meant that in the case where the magistrate was involved with more than one person in heterosexual or same sex life partnership, benefits would accrue to one spouse. However the drafters still needed to confirm with stakeholders if they were happy with that clause.
Dr Delport (DA) was of the view that there was a need to extent the definitions contained in Clause 11 beyond judicial officers and to the general public and more generally to society.
Adv de Lange agreed. However he was of the view that the Committee in the interim was responding to the justice family.
Clause 13 Substitution of sections 9 and 10 of Act 47 of 2001 (dealing with amounts payable to surviving spouse or partner of Constitutional Court judge and judge)
Adv de Lange asked if s(9)(1)(b) meant that something in the regulation not yet foreseeable could possible trump some of the provisions of the Act.
Mr J de Lange's reply was that s(9)(1)(b) was a sensitive clause as it was touching on issues of equality and status. Hence he was of the view that this could mean that the regulation might also be challenged on constitutional grounds and be set aside.
Adv de Lange proposed that the definition of "benefits" be restricted in terms of that particular clause. He further requested the drafters to spell out exactly what benefits were judges and magistrates entitled to.
Adv de Lange proposed the use of the phrase "remuneration including salary and allowance" instead of "annual salary".
Issues dealing with suspensions
Clause 3 Amendment of section 13 of Act 90 of 1993
Adv de Lange asked if for s13(3)(g) the drafter could include the phrase "the suspension shall elapse forthwith" as reflected in s13(3)(d).
In s13(4)(a)(iii) Adv de Lange proposed that the phrase "if the magistrate was provisionally suspended" be changed to "if the magistrate is still provisionally suspended" because if the suspension of the magistrate could be interpreted as something that had happened long time ago the commission would not be able to confirm the suspension immediately.
Adv de Lange (Chair) thanked Mr J de Lange from the department for his drafting. He noted that the proposed Bill was closer to finalisation and would come into effect in July of this year. He noted that after the drafting changes had been effected, the document would be sent back to the Committee and thereafter be sent to the Remuneration Commission, the Department of Provincial and Local Government, the Office of the President as well as to the Judges and the Magistrates.
The meeting was adjourned
PROPOSED AMENDMENTS TO INDEPENDENT COMMISSION FOR THE REMUNERATION OF PUBLIC OFFICE-BEARERS ACT 92 OF 1997
GENERAL EXPLANATORY NOTE:
Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insei4ions in existing enactments.
To provide for the establishment of the Independent Commission for the Remuneration of Public Office-bearers to make recommendations concerning the salaries, allowances and benefits of office-bearers; and for matters connected therewith.
In this Act, unless the context indicates otherwise
'Commission' means the Independent Commission for the Remuneration of Public Office-bearers established by section 2;
'Constitution' means the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996);
(a) any member of the Cabinet, any Deputy Minister, any member of the National Assembly, any permanent delegate to the National Council of Provinces. any member of the [Council] National House of Traditional Leaders, any member of any provincial house of traditional leaders or any traditional leader;
(b) any member of the Executive Council of a province. any member
of any provincial legislature or any member of any Municipal Council of
any category or type of municipality: and
(c) any person holding the office of
Constitutional Court judge or a judge as defined in section 1 of the judge's Remuneration and Conditions of Employment Act. 2001 (Act No.47 of 2001); and
bit- magistrate who is appointed tinder section 9 of the Magistrates' Coui4s Act. 1 944 (Act No.32 of 1 944). read with section 10 of the Magistrates' Act. 1993 (Act No.90 of 1993). and includes a magistrate in an acting or temporary capacity;
2 Establishment of Commission
There is hereby established a commission to be known as the Independent Commission for the Remuneration of Public Office-bearers.
3 Constitution of Commission
(1) The Commission shall consist of [ seven ] members appointed by the President.
(2) Subject to the provisions of section 4, the President shall appoint fit and proper persons as members of the Commission on the ground of their knowledge Of or experience in, matters relating to the functions of the Commission.
(3) A member of the Commission shall serve in a part-time capacity.
(4) The President shall designate one member as chairperson and another as deputy chairperson of the Commission.
(5) If the chairperson is absent or for any reason unable to act as chairperson, the deputy chairperson shall act as the chairperson of the Commission.
4 Persons not qualified to be members of Commission
(1) No person shall be appointed as a member of the Commission if
(a) that person is an office-bearer as defined in paragraphs H). (b) or (c)(ii) of the definition of 'office-bearer' in section 1;
(b) that person holds office in any political party or political organisation;
(c) that person is an unrehabilitated insolvent or
(d) that person has been convicted of any offence for which that person has been sentenced to imprisonment without the option of a fine for a period of not less than twelve months, unless a period of at least five years has expired after the date on which the sentence was served.
(2) For the purposes of subsection (I) (d), no person shall be deemed to have been sentenced until an appeal against the conviction or sentence has been disposed of or until
the period has expired within which an appeal may be lodged, as the case may be.
5 Conditions of appointment, term of office and filling of vacancies
(1) The President may from time to time determine the conditions of appointment of the chairperson, the deputy chairperson and any other member of the Commission, and such conditions of appointment shall not be altered to a member's detriment during the member's term of office
(2) Subject to the provisions of subsection (3) and section 13, a member of the Commission shall be appointed for a non-renewable term of office of five years
(3) Any casual vacancy in the Commission shall be filled by the appointment of a member for the unexpired portion of the term of office of the member in whose stead the first-mentioned member is appointed.
6 Vacation of office
The office of a member of the Commission shall be vacated
(a) if that member becomes subject to any disability mentioned in section 4;
(b) if that member becomes of unsound mind;
(c) if that member resigns by lodging a resignation in writing with the President.
7 Meetings of Commission
(1) A meeting of the Commission shall be held at least once in every year at a time and place determined by the chairperson of the Commission.
(2) Five members of the Commission shall form a quorum for a meeting of the Commission.
(3) The decision of a majority of the members of the Commission present at a meeting of the Commission shall constitute a decision of the Commission, and. in the event of an equality of votes on any matter, the person presiding at the meeting concerned shall have a casting vote in addition to that person's deliberative vote.
5 Functions of Commission
(I) The Commission may exercise the powers and shall perform the duties entrusted to the Commission by this Act, section 219 of the Constitution or any other law.
(2) (a) The Commission may conduct an inquiry into any matter in respect of which it is authorised by this Act, section 219 of the Constitution or any other law to perform any function.
(b) For the purposes of the inquiry, the Commission shall have the powers contemplated in section 3 of the Commission Act, 1947 (Act 8 of 1947), and the provisions of subsections (3) and (4) of the said section 3 shall apply in respect of a person who gives evidence before the Commission or who has been summonsed to attend any meeting of the Commission as a witness or to produce any book, document or object.
(3) The Commission may conduct or cause to be conducted such research or obtain such information from the Secretary to Parliament, the secretary to any provincial legislature. the secretary to the [Council] National House of Traditional Leaders, the secretary to any provincial house of traditional leaders, the chief executive officer of any municipality. the secretary to the Judicial Service Commission. the secretary to the Magistrates' Commission or any [office-bearer] functionary or body as may bc necessary for the performance of the functions of the Commission under this Act, section 219 of the Constitution or any other law.
(3A) Whenever the Commission performs any function in terms OF this Act relating to the salary. allowances and benefits of any office-bearer as defined-
(a) in paragraph (c)(i) of the definition of 'office-bearer' in section 1. it must
have re2ard to the provisions of the Judges' Remuneration and Conditions of Employment Act. 2001 (Act No. 47 of 2001). and in particular to section 2 of that Act; or
(b) in paragraph (c)(ii) of the definition of 'office-bearer' in section 1. it must
regard to the provisions of the Magistrates Act. 1 993 (Act No.90 of
1993). and in particular to section 12 of that Act.
(3B) (a) If any member of the Commission is an office-bearer as defined in paragraph (c (i) of the definition of 'office-bearer in section 1. that member must refrain from participating in any of the Commission's deliberations relatin2 to the salary. allowances and benefits of any office-bearer as defined in paragraph (c) of the said definition.
(b) Any member of the Commission who may directly or indirectly derive any benefit from the acceptance by file President of any recommendations by the Commission must refrain from participating in any of the Commission's deliberations relating such recommendations.
(4) The Commission shall. after taking into consideration the factors referred to in subsection (6) publish [annually] in the Gazelle recommendations concerning
(a) the salary, allowances and benefits of any office-bearer as defined in [paragraph] paragraphs (a) and (c) of the definition of office-bearer' in section 1;
(b) the upper limits of the salary, allowances or benefits of any office bearer as defined in paragraph (b) of the definition of 'office bearer' in section 1; and
(c) the resources which are necessary to enable an office-bearer as defined in para2raphs (a) and (h) of the definition of 'office bearer' in section 1 to perform the office-bearer's functions effectively
(5) Recommendations referred to in subsection (4) must be published in the Gazette at least once a year in respect of each category of office bearers and must be submitted to Parliament before publication.
(6) When makin2 recommendations referred to in subsection (4) the Commission must take the following factors into account:
(i) The role, status. duties. functions and responsibilities of the office bearers concerned;
(ii) the affordability of different levels of remuneration of public office
(iii) current principles and levels of remuneration, particularly in organs of state. and in society generally
(iv) inflationary increases:
(v) the available resources of the state: and
(yj) any other factor which, in the opinion of the said Commission. is relevant.
9 Investigations for specific purposes
The Commission shall at the request of the President investigate and consider any matter relating to the salaries, allowances and benefits, including pension and medical aid benefits, of office-bearers, and shall make recommendations to the President in regard thereto.
10 Annual report
(I) The Commission shall within two months after 31 December Of each year submit to the President a report on its activities during that year.
(2) The President shall cause a copy of the report submitted in terms of subsection (I) to be tabled in Parliament as soon as may be practicable.
11 Administration of Commission
(1) The Director-General: Office of the President shall, after consultation with the Commission, designate such officers in the Office of the President as may be necessary to perform the work incidental to the exercise or performance of the powers and duties of the Commission.
(2) The expenditure incidental to the exercise or performance of the powers and duties of the Commission shall be defrayed from moneys appropriated by Parliament for that purpose.
12 Repeal of Act 37 of 1994, and savings
(1) The Commission on the Remuneration of Representatives Act, 1 994, is hereby repealed.
(2) Anything done under the law repealed by subsection (1) and which could be done under a provision of this Act, shall be deemed to have been done under that provision.
13 Interim constitution of Commission
(I) Notwithstanding the repeal of the Commission on the Remuneration of Representatives Act, 1 994 (Act 37 of 1 994), by this Act, any person who immediate before the date of commencement of this Act was a member of the Commission on the Remuneration of Representatives shall be deemed as from that date to be appointed under this Act as a member of the Commission for a term of office which expires on 5 April
(2) Any casual vacancy in the Commission on the Remuneration of Representatives immediately before the date of commencement of this Act shall be filled by the appointment of a member in accordance with the provisions of this Act for the unexpired portion of the term of office referred to in subsection (1).
14 Short title and commencement
This Act shall be called the Independent Commission for the Remuneration of Public Office-bearers Act, 1997, and shall come into operation on a date fixed by the President by proclamation in the Gazette.