The Deputy Minister of Justice and Constitutional Development presented that the determination on the remuneration of judges and magistrates by the President became effective on 1 April 2021. The judiciaries and the independent Constitution institutions were entitled to remuneration (salaries, allowances and benefits) as determined by the President, having taken into account the recommendations of the Independent Commission for Remuneration (ICR) of Public Office Bearers. The ICR recommended a 3% increment to the President for all public office bearers, although judges had requested an 8% increase and magistrates had requested a 5.3% increase.
The President agreed with the ICR recommendations and was intending to determine a 3% salary increase across the board for judges and magistrates, subject to approval by Parliament. On 7 June 2022, the Portfolio Committee approved the determination by the President.
The Committee agreed that a 3% remuneration increase for judges and magistrates was appropriate, given the current economic situation of the state. The Committee adopted reports approving the remuneration for judges and magistrates.
The Deputy Minister of Police explained that the Amendment Bill was a response to the Criminal Law (Forensic Procedures) Amendment Act No 37 of 2013 (commencing 31 January 2015) which had made provision for taking buccal samples of convicted offenders and had provided a two year window period for the samples to be taken. However, some offenders had refused to cooperate as there had been no element of enforcement to the Act. The offenders had feared that their buccal sample would potentially link them to other offences they could have committed in the past.
The Criminal Law (Forensic Procedures) Amendment Bill [B25-2021] would allow the police to take the buccal samples outside of the two-year period and include an enforcement provision. The amendment allows authorities to make use of minimum force (to ensure compliance) if a person refused to have a buccal sample taken.
Committee Members asked why SAPS had been unable to complete taking the buccal samples and what measures were in place to ensure proper training to the officials taking the buccal samples. Why had it taken five years to remedy the legislation? More importantly, what had the impact of SAPS failing to take the samples? What number of Schedule 8 offenders had given buccal during the transitional period of January 2015 to January 2017? How many Schedule 8 offenders had been released without their buccal samples being taken since January 2017? What percentage of Schedule 8 offenders had refused to have their buccal samples taken to date? How would the application of ‘minimum force’ be monitored? Would there be sufficient budget to implement the Bill once passed?
Determination of remuneration of judges and magistrates
Deputy Minister of Justice and Constitutional Development, Mr John Jeffery, stated that the remuneration of judges and magistrates by the President was effective as of 1 April 2021 for the 2021/22 financial year. The judiciary and the independent constitutional institutions were entitled to remuneration (salaries, allowances and benefits) as determined by the President from time to time in the Government Gazette, having taken into account the recommendations of the ICR. The notice by the President had to be submitted to Parliament for approval or disapproval, whether in whole or in part. The ICR only presented its report on the remuneration of public office bearers on 30 March 2022.
The ICR considered the submissions by the stakeholders, the fiscal condition of the state, the state’s wage bill in the impact of the salary increment of the public office bearers, and the general economic state of the country as affected by the COVID-19 pandemic. The ICR recommended a 3% increment to the President for all the public office bearers so that it was not only judges and magistrates, but ‘everybody’, who would benefit from the increment. Having considered the gazetted ICR report , the President submitted his determination for the remuneration of judges and magistrates to both Houses of Parliament on 26 May 2022. The President agreed with the ICR recommendation and was intending to determine a 3% salary increase across the board for judges and magistrates, subject to approval by Parliament. On 7 June 2022, the Portfolio Committee approved the determination by the President.
In terms of the ICR, the judges had submitted that the best salaries had diminished due to inflation or no increase, and referred the ICR to Section 176 (3) of the Constitution, which provided that the salaries, allowances and benefits of judges could not be reduced. The judges raised concerns that their salaries had eroded by 20% during the past five years, and were concerned that the erosion was unconstitutional. The judges proposed that the ICR should consider the salaries of judges separately from other public office bearers, and recommended a cost-of-living adjustment and that the ICR had to consider implementing progressive steps aimed at addressing the 20% deficit – they wanted an increase of no less than 8%.
The IRC report noted that the Lower Courts Remuneration Committee had submitted on behalf of magistrates. Remuneration levels had been consistently reduced over the past 11 years, and it recommended a cost of living adjustment to make good the compounding and cumulative shortfall – so it wanted a 5.3% increase.
The Department recommended that the Select Committee consider and approve the notices by the President for a 3% salary increase for judges and magistrates with effect from 1 April 2021.
Ms M Bartlett (ANC, Northern Cape) said it was concerning that the salaries of judges and magistrates had eroded over the years. The seriousness of the economic conditions that were facing the country was understood and the Committee had to agree with the IOR-recommended 3% increment for all public office bearers from 1 April 2021.
Mr T Dodovu (ANC, North West) agreed that it was important to take into account the economic situation of the country when increasing remuneration. We must welcome the Deputy Minister's comments, given the current challenges South Africa is facing. He requested that the Committee be forwarded the ICR report.
The Chairperson tabled the Committee Report on remuneration of judges and it was adopted by the Committee. Likewise, the Committee Report on remuneration of magistrates was adopted.
Criminal Law (Forensic Procedures) Amendment Bill
The Chairperson said the Amendment Bill had been referred to the Committee on 13 March 2022 and it was worth noting that the Portfolio Committee had made no amendments to the Bill.
Deputy Minister introduction
The Deputy Minister of Police, Mr Cassel Mathale, said this Amendment Bill was a response to the Criminal Law (Forensic Procedures) Amendment Act No 37 of 2013 which commenced on 31 January 2015. That Act had made provision for taking buccal samples of convicted offenders and had provided a two-year window period for the samples to be taken. However, some offenders had refused to cooperate as there had been no element of enforcement to the Act. The offenders had feared that their buccal samples would potentially link them to other offences they could have committed without being traced in the past.
This Amendment Bill would effect an amendment that would allow the police to take the buccal samples outside of the two-year period and include a provision for enforcement. The amendment would allow authorities to make use of minimum force (to ensure compliance) if a person refused to have their buccal samples taken.
Civilian Secretariat for Police Service briefing
Ms Bilkis Omar, Chief Director: Policy Development, said the Deputy Minister had highlighted the reasons for and purpose of the Bill and she asked the Committee to consider the Bill and make recommendations to the NCOP.
Adv Bell Dawn, Chief Director: Legislation, explained that the required notice by National Assembly Rule 276(1)(b) was given that the Minister of Police intended to introduce the Bill and a summary of the Bill had been published in the National Gazette on 10 October 2021. On 20 December 2021, the Bill was introduced and referred to the National Assembly Committee as well as to the Joint Tagging Mechanism.
The Portfolio Committee on Police published the Bill on 4 March 2022 for public comment with the closing date for submissions on 11 March 2022. Deliberations on the public comments took place on 16 March 2022. The Bill was supported in principle by the two organisations that submitted comments and by the political parties involved with the deliberations on the Bill. The Portfolio Committee unanimously adopted the Bill unamended on 4 May 2022 and the Second Reading debate on the Bill took place in the National Assembly on 31 May 2022.
The Bill effectively consisted of one clause with a number of sub-clauses. The clauses related largely to the current Section 7(7) of the principal Act, which dealt with the transitional arrangements, and thus it had a new subsection substituted for Section 7(7).
Clause 1 of the Bill stated that there were no new definitions to consider.
Clause 2(a) substituted Section 7(7) of the Act – but without a time limitation for the taking of buccal samples of the persons convicted of Schedule 8 offences.
Section 7(7)(a) provided for the taking of buccal samples from any person serving a sentence of imprisonment for any offence listed in Schedule 8 of the Criminal Procedure Act 51 of 1977.
Section 7(7)(b) provided that the National Commissioner of Correctional Services had to report the ‘prescribed information’ of Schedule 8 offenders to the SAPS National Commissioner, at least three months before the planned release date of such persons.
Section 7(7)(c) provided that the SAPS National Commissioner had to, on a quarterly basis, submit a report to the Minister on the progress in taking of buccal samples from Schedule 8 offenders.
Clause 2(b) inserted after subsection (7) the following subsections that dealt with the enforced taking of buccal samples.
Section 7(7A) provided for the lodging of an application by the SAPS National Commissioner to a judge or magistrate for a warrant against a convicted Schedule 8 offender who refused to submit to the taking of a buccal sample.
Section 7(7B) provided that to ensure the enforcement of the obligation of taking a buccal sample, the authorised person, assisted by Correctional Service officials, could use ‘minimum force’ (within constitutional bounds) against a person who refused to submit to the taking of a buccal sample.
Section 7(7C) required that the SAPS National Commissioner, in consultation with the National Commissioner of Correctional Services, to issue and published instructions on the use of ‘minimum force’ in the National Gazette.
Section 7(7D) provided that Section 32(5) and (6) of the Correctional Services Act on the use of force, apply the necessary changes to the 'use of force' requirements as stated in Section 7(7B).
Once the Bill was put into operation, it would go a long way in solving cases of rape, murder and other violent crimes including against vulnerable citizens such as women and children.
Ms Bartlett asked why SAPS had not been able to complete the taking of buccal samples and what measures were in place to ensure proper training of officials to take the buccal samples. Why had it taken five years to remedy the 2015 Act? What had been the impact of SAPS failing to take the samples? What number of buccal samples had been taken by SAPS from Schedule 8 offenders during the two-year transitional period (January 2015 to January 2017)? What number of Schedule 8 offenders had been released without a buccal sample taken from January 2017?
The Chairperson asked what percentage of Schedule 8 offenders had refused to have their buccal samples taken, to date. How would the application of ‘minimum force’ be monitored? Would there be sufficient budget to implement the Bill once passed?
The Deputy Minister of Police replied that the reason for the delay was that there had been a view that the buccal samples of all South Africans should be taken, and the process would be driven by the Department of Home Affairs. There was a debate and no consensus had been reached on the matter. SAPS then took the decision to proceed with the 2015 Amendment Act so that the buccal samples of convicted people could continue being taken. There were specific officers that would be trained to take the samples and it would not be any officer.
Dr Philip Jacobs, Head: Legal Service, replied about ‘minimum force’ saying that any police officer who had to exercise force in executing a police function, had to do so with ‘minimum force’ as reasonably required in the circumstances. There were different circumstances and the definition of ‘minimum force’ would vary with respect to each circumstance. The monitoring of ‘minimum force’ was to be done by the Inspecting Judge for the Judicial Inspectorate for Correctional Services, who would be able to ascertain if the application of ‘minimum force’ was reasonable.
On the financial implications, Adv Bell answered that the implementation would cost just over R78 million. The number was 96 875 convicted Schedule 8 offenders who had been released from prison since the Bill came into operation in January 2015.
The Chairperson said the Committee would proceed to publish the Bill for public comment. After the July recess, the Committee would meet with the Department to discuss the comments.
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