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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
20 MAY 2003
JUDICIAL OFFICERS (CONDITIONS OF SERVICE) AMENDMENT BILL; JUDICIAL CONDUCT TRIBUNAL BILL: DISCUSSION
Chairperson: Adv J H de Lange (ANC)
Judicial Officers (Conditions of Service) Amendment Bill
Submission by the Association of Regional Magistrates of South Africa
Magistrates Commission Submissions (please contact firstname.lastname@example.org for a copy)
Judicial Conduct Tribunal Bill (document is not yet available publicly)
The Committee briefly discussed the issue of amending the electoral system and the issue of how to proceed with information gleaned from the recently completed study tour to study the criminal justice system.
The Committee met with a representative of the Department of Justice and informally discussed the Judicial Officers Amendment Bill and the Judicial Conduct Tribunal Bill. Changes were made to specific clauses in the Bills and it was hoped that they would be ready for final comment by the judiciary next week.
Adv de Lange alerted Members to the possibility of a joint meeting with the Home Affairs Portfolio Committee in order to sort out issues involving the electoral system. Since Schedule 6 of the Constitution was arranged on an interim basis, Parliament must pass the detailed election rules to avoid a crisis in the upcoming election. The Department of Home Affairs was attempting to create a new Schedule that will contain the rules regulating elections and will be used to amend the Constitution.
Adv de Lange disagreed with that approach, stating that the principles governing the electoral system are already contained in the Constitution. He argued that the rules and regulations should be added to the electoral act. That arrangement would facilitate making amendments to the rules of the electoral system, as a two-thirds majority would not be needed to amend an act.
Adv de Lange discussed the study tour that the Committee participated in over the parliamentary recess. Observing all aspects of the criminal justice system was an enriching experience. The parties should have a chance to process the information and the Committee could hold a meeting to discuss the issues raised. The Committee should return to the areas visited in three or four months.
Ms S M Camerer (DA) stated that she found the study tour enormously valuable, but pointed out that Johannesburg had severe problems in their criminal justice system.
Ms I Mutsila (ANC) agreed that Johannesburg had a problem with the criminal justice system that must be addressed soon. She was particularly dismayed at the large number of prisoners who have been awaiting trial for a long time.
Adv de Lange noted that in the Eastern Cape, particularly in Port Elizabeth, he was pleasantly surprised with the progressive thinking of those in the system. He suggested that some Ministers accompany the Committee next time they go on a study tour.
Ms Camerer stated that the she found it hard to believe that the Child Justice Bill would be properly implemented in Johannesburg.
Adv de Lange recalled that 31 children were sentenced to a reformatory school in Port Elizabeth but have sat in prison for four years.
The Chairperson stated that further discussions on the study tour will take place at a later meeting. The key to moving forward was getting the executive branch of the government involved.
Adv de Lange reviewed the Committee's continuous agenda. He stated that the Committee would deal with legislation relating to the Judicial Officers (Conditions of Service) Amendment Bill until the end of May. On 2 June 2003, the Committee will begin their budget hearings and hear from the Department of Justice, the Prosecuting Authority, Legal Aid, Human Rights Commission, and the Public Protector, among other organisations. On 17 June 2003, the budget vote will take place. After completion of the budget vote, the Committee will deal with legislation again.
Judicial Officers (Conditions of Service) Amendment Bill
The Committee reviewed the responses received from the Magistrates Commission along with Mr J de Lange of the Department of Justice. The Committee accepted the suggestion of Mr T C Mabaso, Chief Magistrate: Durban, agreeing to change the phrase "amount of salary" in Clause 2(4) to "remuneration".
Mr Z N Nduna, Cluster Head, Judiciary: Northern Cape, suggested that acting magistrates be specifically concluded in the category of magistrates. Mr de Lange stated that he would find a way to include acting magistrates in the definition of magistrates.
Mr Nduna also suggested that the phrase "so rejected" in Clause 2(3)(b) be changed to "disapproved". The Committee agreed to this change.
Submission by ARMSA
The Committee reviewed the submissions by the Association of Regional Magistrates of South Africa (ARMSA) (Please see attached document). The Committee considered ARMSA's suggestion that "salary" be defined as "pensionable salary". Adv de Lange argued that pension would fall under the category of benefit. The term remuneration is defined as "salary, allowance, and benefit". He suggested that Mr de Lange explicitly include pension as a benefit. The Chairperson decided to flag this clause for the Committee to return to. The Committee would decide later whether to explicitly include pension and medical aid in the definition of benefit.
ARMSA suggested changing the definition of magistrate to include anyone serving in the capacity of a magistrate (the suggested definition is outlined in paragraph 46 of the submission). The Committee did not agree with the proposal.
ARMSA suggested that a judicial officer that holds one office in a permanent capacity but is appointed to a higher judicial office in an acting capacity could be entitled to both salaries.
The Committee decided that if a judicial officer is appointed to a higher judicial office in an acting capacity for a significant period of time, he or she should receive the remuneration of the position, but not both. It was decided that Mr de Lange would add two clauses to relate the fact that such a judicial officer should receive the higher level of pay if he or she acts in a higher capacity for one week or longer.
With regard to Clause 14(2)(2)(b) the Committee asked why the phrase "salaries, allowances or benefits" was used instead of the word remuneration. Mr de Lange responded that the wording was in line with the 'judge's act'.
ARMSA raised the issue of parliamentary approval of salaries, stating that they did not think it was necessary. The Committee decided to phrase the Bill so that the remuneration is fixed only upon approval by Parliament. The remuneration, upon approval, would be backdated to the date the recommendation was published in the Gazette. The Committee agreed to allow Mr de Lange to decide the best way to draft the change.
Adv de Lange stated the rest of the submissions should be received soon so that the Judicial Officers Amendment Bill can be fully revised and sent out to the judiciary for final comment.
Judicial Conduct Tribunal Bill
The Committee addressed the new Judicial Conduct Tribunal that will be responsible for judicial disciplinary matters. The tribunal will be appointed by the Chief Justice and consist of three judges and one magistrate for matters that deal with judges and three magistrates and one judge for matters that deal with magistrates. The format is not yet finalised.
Adv de Lange noted that the Judicial Conduct Tribunal Bill would have to strike a balance between the independence of the judiciary and the need for accountability.
Various amendments to the Bill were made. They were the following:
"Judicial Service Commission" should include the Minister, for purposes of this Bill.
"Magistrates Commission" should exclude politicians from the National Assembly.
Clause 2 should include "after consultation with the Minister".
Under Clause 3, Option 1 was scrapped, in favour of Option 2.
Clause 3(2) should read:
(a) two judges, (b) 1 magistrate, and (c) one fit and proper person who is not a judicial officer.
Clause 3(3)(c) should read, "The Chief Justice must consult with the Minister, after having consulted with the relevant body". The Chairperson directed Mr de Lange to make it clear that either the Minister or Chief Justice could consult with any relevant constitutional body.
Mr B Magwanishe (ANC) asked if legal representation would be provided for the for the judicial officer under review.
Mr J de Lange stated that if this provision was not specifically excluded, then it was automatically included as a provision. He pointed out that Clause 11(a) provided that a judicial officer whose conduct is the subject of a hearing, could have a legal representative present at such a hearing.
At this point, the Chairperson and Mr de Lange made some technical amendments, whereby certain clauses of the Bill were relocated to other areas, and the numbering was amended.
Under Part 2 (General Provisions), Clause 6 should be headed, "Appointment of officers, including National Prosecuting Authority".
Under Clause 8, Mr L Landers (ANC) asked how the tribunal would determine if a person had answered "fully and satisfactorily".
Mr de Lange felt it was likely that the term "fully and satisfactorily" probably came from the old Commissions Inquiry Act. He undertook to look into the term, and its implications.
With regard to the wording of Clause 9, the Chairperson questioned whether it could be said that courts have dignity. Mr de Lange responded that the Constitution describes the courts as having dignity. The idea was that the "dignity" of the court is jeopardised when cases drag on too long.
Under Clause 11, subclause (b)(a) will be deleted. The Chairperson asked Mr de Lange to make the wording of the clause more simplistic.
On the matter of disclosure in 11(2), the Chairperson felt that the Committee might have to look into similar legislation from other countries for ideas on how to deal with this particular matter. He also suggested revisiting the Truth and Reconciliation Commission proceedings, and the NPA Act, for guidance in terms of disclosure.
Under Clause 12, with regard to the absence of a judicial officer who fails to appear before a tribunal, the Chairperson felt that a judicial official who was not properly served with a subpoena would be at a disadvantage. He suggested that a reasonable period should be granted to such a person to appear before a tribunal. He asked Mr de Lange to make it clear that it is a deliberate absence by the judicial officer or his legal representative, which will result in the officer being tried in his absence.
Mr J de Lange responded that a person could not be tried in his absence, unless he disrupts the proceedings of the court. The Chairperson then suggested that deliberate non-attendance could be criminalised.
The Chairperson said that when witnesses who are forced to answer questions in the process make defamatory statements about others they cannot claim that they were forced to make these statements by the court. Mr de Lange was asked to look into this occurrence, and see if it was necessary to make a provision here.
The Chairperson asked Mr de Lange to place Clause 14 within brackets, for further consideration. He felt that the Chief Justice should be brought into the process.
Clause 15 dealt with the issue of who would retain and store all the information regarding a particular case before a tribunal, once such a case has been finalised. When Mr de Lange suggested that the JSC should do this, the Chairperson responded that the Judicial Services Commission did not have a real office. He made the suggestion that the Chief Justice could be directed to store the material for a period of five years.
The sentencing for offences cited in Clause 16, were amended as follows, under 16(c):
(1) impose a five-year imprisonment term, instead of three.
(2) impose a ten-year imprisonment term, instead of three.
(3) impose a five-year imprisonment term, instead of three.
(4) impose a ten-year imprisonment term, instead of five.
Under Clause 17, the date by which the Act comes into operation, is 1 January 2004.
At this stage, Mr Magwanishe reminded the Committee that they had previously determined that should a judicial officer be found guilty of misconduct, their benefits would be removed. There was some contention as to whether this could constitutionally be done, and the Chairperson asked Mr de Lange to discuss the matter with his colleagues and legal advisers, in order to bring the Committee a more informed opinion.
The meeting was adjourned.
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