The Department of Justice and Constitutional Development made a presentation on the determination of the remuneration for judges, constitutional justices, and magistrates to the Select Committee. The presentation was made on behalf of the Office of the President.
Having considered the recommendations of the Independent Remuneration Commission (IRC) and the country’s economic condition, the President intends having a 0% increase for judicial officers, judges, and magistrates. The judges noted dissatisfaction over the IRC report, and did not support the recommendations.
The judiciary asked the IRC to accept salary adjustments, at minimum, are based on the cost of living increases. It must be considered separately from those of other public office bearers. This is the case by virtue of constitutional obligations against the reduction of judges’ salaries, allowances, and benefits.
There has also been a request for the interpretation of Section 176(3) to ensure judges are automatically entitled to an annual cost of living adjustment. The IRC is currently engaged in a major review of the appropriateness of the judiciary’s current remuneration package. It includes judges and magistrates.
The recommendations have to be approved by both Houses. The National Assembly Portfolio Committee approved the President’s proposals. The Select Committee Members welcomed the presentation. One of the Members wanted to know what the process would be going forward, considering judges were unhappy about the recommendations.
In other matters, the Select Committee adopted its Report on the Draft Amended Legal Aid Regulations.
The Chairperson said Members received letters from the President, which letters deal with determining remuneration for judges, constitutional justices, and judges of other courts. She said the Deputy Minister will speak about this.
Deputy Minister’s Opening Comments
The Deputy Minister of Justice and Constitutional Development, Mr John Jeffery, said the letter was not from the Department, but from the President. It was a letter to the National Council of Provinces (NCOP) regarding the determination of remuneration for magistrates and judges.
The judiciary is entitled to remuneration in the form of salaries, allowances, and benefits, as determined by the President from time-to- time by notice in the Gazette. The determination is made after taking into consideration the recommendations of the Independent Commission of the Remuneration of Public Office Bearers. The determination is for the last financial year, with effect from 1 April 2020 until 31 March 2021. The Commission only gazetted its report of all office bearers, including Members of Parliament, on 31 March 2021. This is why the letter was only sent on 13 April 2021.
The Independent Remuneration Commission (IRC) considered the fiscal condition of the country, the state’s wage bill, the impact of public office bearers’ salaries on the fiscus, the general status of the country, which was negatively affected by Covid 19, and the affordability of the fiscus. It recommended a zero salary increment for everybody. This recommendation comes from the President. Having considered the Commission’s recommendations, and the serious economic conditions facing the country, the President intends to determine a 0% increase for judicial officers, magistrates, and judges.
Speaking on the Independent Remuneration Committee’s (IRC) report, Mr Jeffery said the Chief Justice and the Lower Courts’ Remuneration (LCR) committees do not support the Commission’s recommendation.
Regarding the judiciary, the Chief Justice asked the IRC to accept the principle of salary adjustments, which at a minimum, is based on the cost of living increases which Treasury established. It must be considered separately from those of other public office bearers, by virtue of the constitutional obligations against the reduction of judges’ salaries, allowances, and benefits. The judges said Section 176(3) should be read in a way to ensure judges are automatically entitled to an annual cost of living adjustment. However, the IRC said Section 176(3) of the Constitution only protects the nominal value of judge’s remuneration, and does not guarantee inflation adjustments. The IRC also said the current financial conditions weigh heavily on the country and cannot be ignored.
Magistrates managed to get an increase every year, but judges did not get an increase in the 2016, 2017, and 2019/20 financial year. The IRC said the Lower Courts’ Remuneration Committee raised a valid concern on behalf of magistrates. It said public servants, in particular prosecutors, received increases above inflation in the past, while magistrates within the framework of public office bearers received lower than inflation increments.
Regarding the affordability of increases in salaries, the Commission said it relied on its interactions with National Treasury. To this extent, the Commission included National Treasury’s previous recommendations appropriately. There were times in the past where the IRC heeded the advice of National Treasury, only for the public sector to receive an increment above inflation.
The IRC is currently busy with a major review of the appropriateness of the judiciary’s current remuneration package. It is looking at judges and magistrates, and has been ongoing since 2017. IRC appointed 21st Century Pay Solutions to assist with the major review. The judiciary, especially the magistracy, is extremely unhappy with the progress of the major review, which is ongoing. He suggested the Committee may want to ask the IRC to brief the Committee on its progress with the review. The matter is complex. The current remuneration dispensation of judges and magistrates pre-dates the Constitution. The Minister and the Department are engaging with counterparts in National Treasury, Department of Transport, and Public Service and Administration as part of this process.
The recommendation must be approved by both Houses. The National Assembly Portfolio Committee approved the President’s proposals, but it still has to go to the House, and the Select Committee.
Mr E Mthethwa (ANC, KZN) asked what the process would be moving forward, given that judges were not happy with the proposal.
The Chairperson said the Committee would deal with the Committee report in a subsequent meeting.
Deputy Minister Jeffery said after considering the IRC report and before the Gazette can be published, it has to be approved by both Houses. This is the process in progress at the moment. This is assuming the National Assembly will approve it because the Committee is recommending approval, and it is hoped the NCOP approves it too. After this, it will be done, and there will be no increase. If this is the case, the judges will have to look at other remedies.
The Constitution protects the judiciary from having its salaries reduced. This is the third time the judges would not have gotten an increase. Judges may choose to go to Court, however, it is not sure who would hear the matter, as every South African judge or magistrate has a vested interest in the matter, but this is up to the judges and magistrates.
He repeated his suggestion regarding the Committee inviting the IRC to brief it on the review it is doing on the magistrates and judges salaries. He said it does not have to be immediate, but when the Committee has time.
The remedy of going to Court, given this case, might be complicated.
Following the response from the Deputy Minister, the Chairperson said the possibility of having an engagement with the IRC could be something the Committee could look into. She said she recalls the matter arising previously.
The Chairperson said assuming Members are comfortable with the report, the Committee will deal with it at the next meeting.
Report of the Select Committee on Security and Justice on the Draft Amended Regulations tabled in terms of section 23(2) of the Legal Aid South Africa Act, 2014 (Act No. 39 of 2014)
The Chairperson introduced the Committee Report on the Draft Amended Legal Aid Regulations for adoption.
The Committee received a briefing on the regulations on 10 March 2021.
Any regulations made under Section 23 of the Legal Aid Act it must be tabled. It also requires both Houses of Parliament to approve these regulations.
There were no comments regarding the report.
Ms M Bartlett (ANC, Northern Cape) moved to adopt the report.
It was seconded by Mr Mthethwa.
The Committee adopted the report.
The meeting was adjourned.
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