Legal Aid South Africa and PAIA Regulations; Judges Salaries and Chapter 9 Office Bearers; with Deputy Minister

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Justice and Correctional Services

12 May 2021
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services

The Department of Justice and Constitutional Development briefed the Committee on the amendments to the Promotion of Access to Information Act, 2000 (Act 2 of 2000) as well as the proposed salaries increases for Chapter Nine institutions. The Deputy Minister took the Committee through the proposed increase in the judges’ salaries aspect of the Department’s presentation. He also provided the purpose of the Act; a history of how the remuneration of office-bearers was determined before commencement of the Act; the process by which the Act came into operation.

The Legal Aid Board briefed the Committee on the amendments to the regulations in terms of the Legal Aid South Africa Act, 2014. The programme was adopted.

The Committee noted both briefings.

Meeting report

The Chairperson opened the virtual meeting, welcoming the Members, Deputy Minister of Justice, the Legal Aid Board as well as Committee support staff to the meeting. He then introduced the agenda.

Promotion of Access to Information Act, 2000 (Act 2 of 2000): Amendment of Regulations presentation

 Ms Ina Botha, Principal State Law Adviser, took the Committee through the aspect of the presentation that dealt with the amendments of the Promotion of Access to Information Act (PAIA). Section 9 of the Political Party Funding Act, which states that a political party must disclose to the Electoral Commission certain donations above a prescribed threshold, resulted in having to do consequential amendments to the PAIA. As a result of that Act being changed, the regulations had to also change because they work together.

In terms of section 92 of PAIA, any regulation must, before being gazetted, be submitted to Parliament. There were regulations already published in 2002, which have been amended on a few occasions. The principal Act is now being amended to provide for the private funding of political parties and independent candidates to be recorded, preserved, and made available and for matters connected therewith. She took the Committee through the remaining background to the amendments as well as its contents. She took the Committee through a list of political parties that were consulted in making the amendments to the regulations; the comments received as feedback; the submission made to Parliament in terms of section 92 and lastly the commencement of the amendments. 

The Chairperson asked the Members for their engagement on the presentation they received. He noted that the Members did not have any comments or questions.

Deputy Minister on Judges salary increases

Deputy Minister of the Department of Justice and Constitutional Development, Mr John Jeffery, took the Committee through the proposed increase in the judges’ salaries aspect of the Department’s presentation. He explained that the President decides after considering the recommendations of the Independent Commission for the Remuneration of Public Representatives and submits that to Parliament on behalf of the Office of the President. On behalf of the Office of the President, he presents the determination by the President of the remuneration of the judges, magistrates, members of the South African Human Rights Commission as well as the Public Protector and Deputy Public Protector. There are other Chapter nine officers but they are not the responsibility of the Portfolio Committee of Justice and Constitutional Development.

The determination by the President is with effect from 01 April 2020 for the 2020/2021 financial year that has passed. The Determination of the Remuneration of Office-Bearers of Independent Constitutional Laws Amendment Act 22 of 2014 came into operation on 01 April 2019. Mr Jeffery provided the purpose of the Act; a history of how the remuneration of office-bearers was determined before commencement of the Act; the process by which the Act came into operation. He said that the Remuneration Commission, after considering factors such as the fiscal condition of the country, the Wage Bill, the impact of the salary increment of public officer bearers on the fiscals and the general status of the country, which has been negatively impacted by COVID-19 pandemic, recommended a 0% salary increment to the President for all public office bearers for the 2020-2021 financial year. 

The Chief Justice and the Lower Courts’ Remuneration Committee do not support the recommendations. In respect of the judiciary, the Chief Justice requested the Remuneration Commission to accept the principle that the salary adjustments, which, at a minimum, are based on the actual and the annual cost-of-living increases as established by Treasury; they must be considered separately from those of other public office bearers by virtue of the constitutional obligation against the reduction of judges salaries, allowances, and benefits of the Constitution, which provides that salaries allowances and benefits of judges may not be reduced. The judges contended that section 176(3) should be construed to ensure judges are automatically entitled to an annual cost of living adjustment based on the CPI as determined by Treasury but provided the opposing view from the Independent Remuneration Commission (IRC).

The Remuneration Committee is currently busy with a major review of the appropriateness of the current communication packages of the judiciary, and it has been going on since 2017. The 21st Century Pay Solutions has been appointed by the IRC to assist with major review. The Judiciary is unhappy with the slow progress and the Department noted that the Committee may want to invite the IRC to brief them on the progress with the major review. To conclude, he provided the Committee with statistics reflecting the increases over the years dating back to 2016.

The Chairperson asked the Members for their engagement on the presentation they received. On the basis that there were no comments or questions from the Members, the Chairperson noted that the Committee supported the amendments.

Mr Q Dyantyi (ANC) supported the Chairperson’s comment.

Ms G Breytenbach (DA) commented that although she does not have a comment herself, the Committee should discuss the briefing at some point, not necessarily at the instance of this meeting.

The Chairperson supported Ms Breytenbach’s view.

Amendment of Regulations in terms of the Legal Aid South Africa Act, 2014 presentation

The Legal Aid Board briefed the Committee on regulations that needed to be approved by the House. The presentation covered the enabling provisions of the Act; general matters and details of proposed amendments to the regulations, specifically on regulations dealing with civil matters; the limitation and exclusion of civil legal aid; maintenance, domestic violence and harassment cases; labour cases; divorce and family law cases; other legislation requiring legal representation for children; qualifying for legal and the means test; partially subsidised legal aid and contributions made by the legal aid recipient.

The Chairperson asked the Members for their engagement on the presentation they received.

Discussion

Ms W Newhoudt-Druchen (ANC) pointed out that on the presentation there was a reference made to Legal Aid not being able to assist a candidate if there is no allegation of domestic abuse. Why is that the case? It would then preclude economic abuse and other forms of abuse that are not physical abuse and maybe the person is not speaking out for whatever reason. This clause for limiting it is a cause for concern.

In terms of using terminology for people with disabilities, it is ‘person with disabilities’, ‘child with disabilities’ or ‘people with disabilities’. The other terms used are not acceptable, and so she suggested that they should take heed of using the correct terminology.

The Chairperson thanked the institutions for presenting.

The Committee then adopted its programme for the second term.

The Chairperson stated that the minutes would be dealt with in their next meeting.

The meeting was adjourned.

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