Constitutional Court & High Court Judges: Briefing
Justice and Constitutional Development
25 May 2001
Meeting Summary
A summary of this committee meeting is not yet available.
Meeting report
JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO
COMMITTEE
25 May 2001
CONSTITUTIONAL COURT & HIGH COURT JUDGES: BRIEFING
Chairperson: Adv. J De Lange
Documents handed out
Rationalization of the Courts: Towards Establishing a Judicial System
suited to the Requirements of the New Constitution: Compiled by Magistrates
Commission (See Appendix)
SUMMARY
Among the range of issues that were discussed in this meeting was the issue
of judges' salaries. It appeared that the judges were not satisfied with them.
This was proved by a reluctance by some of the prominent members of the
profession to offer their services in the Bench. There was also the issue of
judges' security.
The common thread that evolved during the discussion was an invitation that
salaries should be reviewed as these officers were increasingly finding
themselves in perilous circumstances, especially those who sit in urban
terrorism trials.
The discussion also focused on the issue of the budget and the need to improve
the infrastructure of the courts. Some presentation was made regarding the
functions of the Rules Board, its staff shortage and the need for additional,
full - time staff to ensure the delivery of an efficient civil justice system.
There were also complaints made surrounding the issue of overcrowding in most
state prisons.
MINUTES
Constitutional Court President's address
Judge Arthur Chaskalson indicated that he would speak generally on behalf
of all the judges. He appreciated the opportunity that they had been given as
members of the judiciary to address the Committee on matters that affected the
members of the bench. He expressed a concern about the danger of the erosion of
an institution. He mentioned that he had written a letter to the Minister of
Justice at the request of the Judicial Services Commission about concerns which
it had expressed relating to the conditions in which judges and magistrates
function. He read the letter to the commission which reads as follows:
"At its last meeting the Judicial Services Commission expressed concern
over the working conditions of judges and magistrates and expressed a view that
this had an adverse impact on the administration of justice. In particular, the
Commission was concerned of the salaries and working conditions of judges were
such that leading members of the profession are reluctant to put their names
forward for appointment to the bench. If this persists, the quality of the
jurisprudence of our courts is likely to decline and the reputation of the
courts would be harmed. It is important that the public should have confidence
in the courts, that everything possible should be done to ensure that the
courts function efficiently and the people of integrity and ability should be
made willing to accept appointment as judges. If this does not happen the
public may lose confidence in the courts and the consequences of that would be
disastrous. The Commission is also gravely concerned about conditions in the
magistrates courts where there is inadequate infrastructure, poor facilities
and in many instances, working conditions that are deplorable. This lowers
morale among magistrates and court officials and reduces respect for the courts
in the eyes of the public. Because of its concern in relation to these matters,
the Commission resolved that I should write you with a request that an
investigation be undertaken as a matter of urgency into ways of improving
working conditions of judges and magistrates and the infrastructure. "
The judge remarked that he was glad that there has been a positive response
from the department as a result of this correspondence that he wrote. He said
that it was absolutely fundamental to democracy and development that there be
an efficient court system and that it be presided over by independent and
competent persons. There should also be a skilled judiciary. This was equally
applicable to the magistrates.
His primary concern was that the court system is not efficient if judicial
officers are not competent. The consequences would be incalculable if there is
a lack of competence in the judiciary at an institutional level. That lack of
competence will adversely affect commercial development, investment and will
encourage the public to take the law into their own hands, it would lead to
corruption and a situation where the people will undermine the constitution and
democracy. He stressed that this should not be allowed to happen. An
institution should not be allowed gradually over a period of time to erode and
to have its morale undermined and its perception in the eyes of the public
diminished. It was fundamental that people of high calibre be attracted to
higher judiciary positions within the framework of the law. He stressed that it
was of concern that it is increasingly becoming difficult to attract people
that are required for permanent positions in the higher courts. He mentioned
that there were a number of reasons to this. He stated that the judiciary
cannot be expected to compete with the private sector, there was no way that
judges can expect their earnings to match those of comparable people in the
private sector.
He suggested that what needed to attract people to the judiciary was, at one
level, to improve salaries. There was also a need to improve working conditions
so that judges are dealt with in a manner that is consistent with their status.
It was important that courts are adequately provisioned. He stated that there
is a perception and there will eventually be a reality that the status of the
judges is gradually being eroded, that they are less valuable in society, hence
it was becoming more difficult to attract talented persons to the judiciary.
The Department of Justice is aware of the problem and is in a process of
restructuring. He opined that it was too early to predict whether this was
going to be successful. However, there were already signs of improvement that
the new structures that the Department is in a process of putting in place will
be effective. He mentioned that the Department needs the Committee's support.
He also said that he was aware that there were a number of practical problems
which he did not want to mention in detail.
At present the budgeting of the higher courts is completely unacceptable. This
was due to the fact that globular amounts are allocated to the regional office
from which the courts would be allocated a specific amount which circumscribed
the determination of their proper budget in order that they may function
properly. The practical result of this is that the courts are confronted with
unilateral and arbitrary cuts in their budget without any prior consultation.
He also complained about judge's secretaries salaries that their salaries are
appalling. He however finally expressed his confidence that these problems will
finally be resolved and that the steps that the department has taken would be
far reaching in the long run. He expressed a hope that judges would also be
invited in the following year in order to address the Committee on the changes
that would hopefully have taken root.
Constitutional Court justice's address
Judge Sandile Ngcobo thanked the Chairperson for a warm welcome to what he
considered to be "an intimidating terrain reserved for the
legislature". He said that the occasion was historic in a sense that
judges have come together in a desperate attempt to find a solution for
delivery of an efficient justice system. He said that his comments would be
limited to a less known institution known as the Rules Board.
The Rules Board is a statutory organ whose function is to make Rules for the
Supreme Court of Appeals, the High court and Lower courts. It does not have
power though, to make Rules for the Constitutional court, Labour court,
Competition court, Family court and the Land Claims court. It is composed of 14
members. All of these members are part time in that they are employed full time
elsewhere. This means that whatever commitment they can give to the work of the
Board is determined by their full time employment commitments.
The support structure of the Rules Board consists of the Secretariat. The
Secretariat consists of four staff members. There is one senior legal
administration officer, two legal administration officers and one
administration clerk. The Board has no professional researchers to provide
research background to the Board. This has to fall squarely on the shoulders of
the Secretariat and the members of the Board. It is this limitation that
affects the ability of the Board to meet its challenges. It is against this
background that the challenges facing the Board are to be considered. These
challenges must be viewed against the constitutional guarantee of right of
access to courts contained in section 34 of the constitution.
To give effect to this guarantee, the Rules Board has to do at least four things:
-It must develop court procedures that will ensure a speedy but less expensive
justice system accessible to all South Africans.
-It must develop an integrated and efficient civil justice system.
-It must develop a basic philosophy which will determine procedures in all
different courts.
-It must bring civil justice system in line with the constitution and latest
development in information technology.
To meet this challenge, it is necessary for the Rules Board to have the
necessary financial as well as human resources. Without these, its ability to
meet these challenges would be nil. In the long run the first casualty will be
the delivery of justice. This is the reason why this matter has to be given
urgent attention.
Serious considerations must be given to the restructuring of the Board, that
is, considering the appointment of Board members who will provide their
services on a full time basis and also providing the Board with professional
researchers. He indicated to have raised these matters with the Ministry of
Justice and other justice officials. They are all supportive of the proposals.
Consequently, proposals have already been submitted to the Deptartment of
Justice suggesting the restructuring of the Board. The proposal is that the
Board should perhaps be remodelled along the lines of the South African Law
Commission with at least 7 members among of which one must be full time to run
the day to day activities of the Board. In addition, it must also be provided
with a team of researchers.
The Board is currently engaged in a harmonization project aimed at developing a
single set of Rules that will apply uniformly to both the High Courts and
Magistrate Courts. This was motivated by the idea that it was nonsensical to
have different Rules governing service of process of court in the Magistrates
courts and in the Higher courts. There has been an overwhelming support of this
project. There are currently 30 individuals who have agreed to contribute to
the project without charge.
Another project is known as the computerization project. This was initiated by
the Dept. of Justice. It is aimed at addressing case management. The Board's
responsibility in this project is to develop rules to implement it. Much
difficulty has been encountered in this area.
Finally, he commented about case management. One of the major criticism of the
civil justice system is the length of time in which a matter comes before
court. By the time it comes before court the witnesses do not remember the
evidence or are nowhere to be found. This hampers the delivery of the civil
justice system. He said that it was imperative that an efficient case
management project be considered with a view to reducing the backlog in both
the Magistrates and Higher courts. He concluded by stressing that an efficient
rule making body is crucial to the delivery of an efficient justice system.
That body must have necessary resources to discharge its mandate.
Address by Judge President: Cape Provincial Division
Judge John Hlophe fully associated himself with the comments that had been
made by justices Chaskalson and Ngcobo. His contribution was limited to two
aspects, viz., security of judges and judges salaries and conditions of
service.
Security of judges is twofold: at work and at home.
Security of Judges at their homes
Before 1995 there was a practice whereby the newly appointed judge had his
security upgraded at the state's expense. This entailed the installation of
buglar guards on all doors as well as alarms. This was discontinued in 1995 as
constitutional democracy had been established. He said that he was the last
judge to benefit from the scheme owing to his appointment to the bench in 1995.
He expressed a concern that since this period the government has been less
concerned with improving or upgrading judges security. He appealed that this
practice should be reinstated. This was in view of the danger to which judges
were exposed especially those who sit in urban terrorism trials.
Security at work
He said that it was not satisfactory particularly in the Western Cape where
there are cases of urban terrorism. This has worsened to an extent that some of
the judges have declined to sit in urban terrorism trials. He stressed that his
was a matter of serious concern that needed to be addressed. He finally
appealed that security in these two senses be considered and be improved.
Judges salaries and conditions of service
He indicated to have been aware of a 1989 incident where the then Min. of
Justice Mr Kotzee made a verbal attack where he complained about the lack of
improvement of judges salaries. He supported the point that had been made
earlier on that correspondence has been written to the Minister of Justice Mr
Penuel Maduna requesting that the matter be given attention. He also said that
he was dissatisfied about an out of town allowance that the judges are getting.
He recommended that this be revisited. He expressed a concern that there has
been a negative publicity in the press about judges salaries. He finally fully
associated himself with justice Chaskalson's remarks that unless an improvement
is made in this regard there would be an undermining of the institution of the
judiciary.
Address by Judge President: Transvaal Provincial Division
Judge Bernard Ngoepe added one dimension to the question of judges salaries
and lamented that there has been a general unwillingness from prominent
practitioners who are in private practice to submit to the Bench due to the
insufficiency of salaries that judicial officers earn compared to the perks
that practitioners make in the private sector. He made an example of having
made more than 30 invitations to practitioners considered to be from
disadvantaged background to provide their services as judges. He said that only
four out of the total number expressed willingness to offer their services in
the Bench as permanent judges simply because they felt that a judges' salary
would not maintain them. This was far too low a number than he had expected, he
said.
Discussion
The Chairperson based his question on the Rules Board and asked if the
there were any proposals to ameliorate the wanting situation and if there were
any resources that were needed to address the problem that had been outlined.
The Judge replied that there has been an ongoing debate within the department
in regard to the procedures to be followed, but this was tied up to what he was
going to say later during his presentation.
Adv. Mgidi (ANC) wanted to know the retirement age of the judges.
Judge Chaskalson replied that it was not easy to deal with a question
especially where one was personally not involved. He indicated to have raised
the issue with the Minister in order that it may be dealt with at an
institutional level. He however indicated that the Constitutional court judges,
unlike the judges of the High court, have a limited tenure of 12 years or until
age 70, whichever occurs earlier. He said that this seems to be in congruence
with the fact that there be a single judiciary headed by a Chief Justice. The
tenure provisions are important for the independence of the judiciary. He also
said that transformation of the judiciary was very important. He took note of
the fact that the older judges are white and the younger ones are black.
Judge Ngcobo added that he was in agreement with the views that had been
expressed by Judge Chaskalson.
The Chairperson asked if the judges would address the issue of the criminal
justice system.
Judge Chaskalson replied that he had complained about the state in which
prisons were in. He also stated that he had visited prisons in Johannesburg and
to have spoken to Judge Fagan who heads an investigating unit regarding this
issue. The Judge said that the conditions were shocking as there were no
adequate facilities. Some of the prisons were packed to capacity - there was no
adequate room to accommodate all the prisoners. He drew the Committee's
attention to the provision of the constitution providing that no one should be
subject to inhumane and degrading treatment. He also complained of the time
that is spent while a prisoner is awaiting trial - some wait for months on end
before they get allocated a date of trial. This was unacceptable, he said. He
invited the Committee to go and investigate for itself the conditions in which
the people live in prisons.
Judge Ngcobo echoed the comments that Chaskalson made and said that the
statistics submitted by Judge Fagan revealed that Medium A that is supposed to
hold 2 630 prisoners held a number of 7 228. This was only a part of the
problem. Some of the prisoners had been held since 1997 without going to trial.
He interviewed one man who was on a charge of trespass and had been held
without trial for four months and intended to plead guilty. He made an emotive
reference to another young man who had been charged with theft of about four
mangoes. He had pleaded guilty. His explanation was that he was hungered at the
time of the offence, and yet he had been held for a couple of months. The
bathroom facilities were not working, water had to be scooped elsewhere and
there was no privacy . These conditions had to be viewed seriously for the
delivery of an efficient criminal justice system.
The Chair replied that his Committee would look into the matter - even taking
it to the Department of Justice.
Ms Mhlawe (ANC) asked a question that seemed unrelated to the subject matter of
the issues that were being discussed, but she pointed out that it was related
to the issue of transformation and asked for the reason behind the lack of
women judges in the Bench
Judge Chaskalson replied that he was aware of the fact that the Bench comprised
mostly of white males and that there are fewer women. He said that the Judicial
Services Commission is currently struggling with this issue.
Judge Ngcobo added that the issue of transformation was a complex one that
needed to be measured against the constitutional canons of equality. He said
that this matter must be viewed from a historical perspective. It was common
knowledge that historically, fewer women were appointed to the Bench. He appropriated
responsibility to the members of the Judicial Services Commission and said that
this body should consider this matter.
Judge Ngoepe stepped in and added that this was not, after all a serious matter
as there was a gradual increase of women judges. This was comparatively far
better than the position that existed in the past. He quoted statistics
revealing improvement as at April this year. The improvement was not only in
respect with women judges, but there was also a higher number of women being appointed
to the magistracy.
The Chairperson asked the representatives from the Magistrates Commission of
the procedure that is followed in disciplining the Magistrates and how it
worked in practice - particularly the disciplinary matter of Magistrate Zulu.
Mr A D Schoeman (Secretary to the Magistrates Commission) replied that Mr
Zulu's case was never related to a disciplinary matter but was more of a case
of incapacity. He also replied that the procedure is set out in the
Regulations. A complaint would first be made to the misconduct Committee of the
Magistrates Commission. An investigation would subsequently be made. A charge
sheet is drawn and served on the magistrate who would be expected to plead
within a reasonable time. If he fails to plead the matter proceeds and is set
down. If he does not arrive at the inquiry evidence is led and the magistrate
may be removed.
The Chair was not satisfied with this explanation as it had some
characteristics of unconstitutionality. He expressed his opinion that to endorse
a removal or suspension of anybody without evidence having been led is
unconstitutional. He doubted if those regulations were drafted after the advent
of a new constitutional order. Mr Schoeman appeared to agree with the
Chairperson. The Chair further said that there may be potential problems with
the regulations, you cannot simply remove somebody on the basis of a charge
sheet without evidence having been led to prove his guilt beyond a reasonable
doubt, he said.
The meeting was adjourned.
Appendix
RATIONALIZATION OF THE COURTS: TOWARDS ESTABLISHING A JUDICIAL SYSTEM
SUITED TO THE REQUIREMENTS OF THE NEW CONSTITUTION
SUMMARY OF A REPORT ON THE POSITION OF THE MAGISTRACY, THE MAGISTRATES
COMMISSION AND ITS SECRETARIAT IN THE
RATIONALISATION PROCESS
COMPILED BY THE MAGISTRATES COMMISSION
MAY 2001
CHAPTER 1: INTRODUCTION AND TERMS OF REFERENCE
[1]Â Â Â Â Â Â Â The Constitution has
established a new constitutional order which, when compared with the lower
courts as they currently exist, provides a compelling need for reform and the
removal of all impediments to the complete independence of the lower courts.
[2]Â Â Â Â Â Â Â Central to this issue of the
independence of the lower courts, in terms of what judicial independence means
in practical terms, is: what ought to be done and when, so as to establish the
complete independence of the lower courts. This can be determined with
reference to what the new order requires. as compared with existing structures
and practices.
[3]Â Â Â Â Â Â Â The purpose of the report is to
convey the Magistrates Commission's views and recommendations to the relevant
authorities concerning the following:
* The re-engineering of the Department of Justice as a business unit: Court
Services in relation to the position of the Magistracy, the Magistrates
Commission and its Secretariat, with particular reference to the Magistrates
Commission's proposal that the Secretariat is to operate independently from the
Department of Justice and should also take over the personnel administrative
functions pertaining to magistrates which are currently being performed by the
various Regional Offices of the Department of Justice.
* The establishment of a judicial system suited to the requirements of the new
Constitution in relation to a report by the Special Rapporteur on the independence
of judges and lawyers to the United Nations on 25 January 2001.
This report will consequently focus on those aspects of the institutional and
administrative relations between the lower courts and the executive which
impinge on judicial independence.
CHAPTER 2 : THE CONSTITUTIONAL IMPERATIVES
[1]Â Â Â Â Â Â Â Section 165[2] of the
Constitution states that the courts are independent. It therefore recognizes
the independence of the courts as an institution.
[2]Â Â Â Â Â Â Â Section 165[4] of the
Constitution places an obligation on organs of state, through legislative and
other measures, to assist and protect the courts to ensure their independence,
impartiality, dignity, accessibility and effectiveness. Again, the courts,
as an institution must be so protected and assisted to ensure
their independence. We emphasize this particular aspect now because it is
foundational to each of the ensuing submissions and recommendations that we
will be making.
[3]Â Â Â Â Â Â Â The constitutional imperatives
in section 241 and item 16[6][a] of Schedule 6 to the Constitution are aimed
at:-
* Regulating the transition from the old [and existing] order to the new
constitutional order established by the Constitution and any matter incidental
to that transition.
* Setting a time frame for the transition.
* Defining the ultimate objective, the subject, the means and the evaluation
standard applicable to the aforegoing.
The ultimate objective is to establish a judicial system suited to the
requirements of the new Constitution.
The method or means that must be adopted towards this goal is a process of
rationalization; i.e. to bring into conformity with the new constitutional
order that which is not; to make more effective that which is a waste of money,
labour, time and materials and to ensure the independence, impartiality,
dignity, accessibility; and effectiveness of the courts.
This must be done by comparing the existing situation of all the courts,
including their structure, composition, functioning, jurisdiction and relevant
legislation with the new constitutional order, established by the new
Constitution.
These matters must be dealt with as soon as it is practical.
The evaluation standard for such rationalization is whether a judicial system
has been established which is suited to the requirements of the new
Constitution.
[4]Â Â Â Â Â Â Â Finally, the
Constitution formulates the Rule of Law in the following terms:
"2. This Constitution is the supreme law of the Republic; law or
conduct inconsistent with it is invalid, and the obligations imposed by it must
be fulfilled'.
CHAPTER 3 : THE PRESENT POSITION
In which respect is the existing judicial system not suited to the
requirements of the new Constitution?
AÂ Â Â Â Â Â Â Â Â THE MAGISTRACY
[1]Â Â Â Â Â Â Â Institutional
Independence
It is difficult to conceive how the courts could be perceived as being
independent of the executive when they appear in the hierarchical structure of
the Department of Justice's organogram. To maintain such a structure would
perpetuate the existing situation where the executive branch of government [the
Department] views the magistracy as its servant. Magistrates ought not to be
classified or treated as employees or as managers of the Department of Justice.
They are holders of public office in the same way as members of the other
pillars of the State. The magistracy ought to be organisationally structured
under the authority of the highest ranking judicial officer and not within the
hierarchical establishment of an organ of state, such as the Department of
Justice. There should be parity between the judiciary, including the
magistracy, and the other pillars of the State. Chapters 8 and 10 of the
Constitution demarcate clearly the distinction between the courts and the
public sector. It is constitutionally untenable to tie the magistracy together
with public administration, thereby perpetuating a colonial legacy which did
not know the rule of law, separation of powers or judicial independence for the
magistracy.
It is consequently submitted that the entire judiciary, including the
magistracy, should be structured as a separate institution, with its own
manifest identity. All the courts should be integrated into this independent
institution and there must be a complete and distinct segregation of all the
courts from any executive structures. It is in this sense that the concept of a
single judiciary should be established. For the effective discharge of its
functions it must, in fact and in law, function [in the judicial,
administrative and institutional context] independently.
[2]Â Â Â Â Â Â Â Court Administration
Even if separation of judicial and administrative functions eventually
materializes, court administrative staff will be required to serve several
components, the government [sv section 197[1] of the Constitution]:
"public servants] must loyally execute the lawful policies of the
government of the day"]; the magistracy and the prosecuting authority.
Basic management principles dictate that employees should not be placed in
positions requiring conflicting loyalties, for it can affect morale and
productivity. It is suggested that the senior administrative official having
responsibility for court facilities and staff, reports directly and exclusively
to the most senior judicial officer and that he or she should ideally not be a
public servant. Such an arrangement would protect and preserve the separateness
and integrity of the judicial branch and guarantee its freedom from potential
or unwarranted intrusions by the other branches of government on its
institutional independence.
Sittings of the court, assignment of judicial officers and direction of the
administrative staff should be controlled by the judiciary, and not managed,
directly or indirectly, by government officials. Other matters directly
affecting the working environment of magistrates, the number of judicial posts,
training and quality of support staff, judicial education and training,
availability of court supplies, access to research resources, security etc
should likewise be controlled by the judiciary, as these are matters that
relate directly to the exercise of the courts' judicial function and also
involve administrative decisions that bear directly and immediately on the
exercise of the judicial function. If the judiciary lacks control over its own
environment it could be rendered subservient to those who control it. Such a
development would deny the reality that the judiciary [including the
magistracy] is itself independent of the executive and legislative structures
of the State and enjoys equal constitutional status with them.
[3]Â Â Â Â Â Â Â Financial and Administrative
Independence
In a Report on Parliamentary Oversight and Accountability dated July 1999, Hugh
Corder, Saras Jagwanth and Fred Soltau of the Faculty of Law, University of
Cape Town argue convincingly that constitutional institutions established in terms
of Chapter 9 of the Constitution, such as the Independent Electoral Commission
[IEC] and other constitutional institutions such as the Judicial Service
Commission should be vested by law with full financial and administrative
independence and that in order to give effect thereto, the law should provide
that the budget of these institutions should not be linked to the budget of a
government ministry or department of State.
The abovementioned propositions are directly relevant to another important
constitutional institution which plays more than a mere supporting role as do
the Chapter 9 institutions. We refer to the courts listed in Chapter 8 of the
Constitution. They also are guaranteed independence and there is also in their
case a constitutional obligation upon organs of State to ensure their
independence through legislative and other measures. Moreover, in their case as
pointed out earlier, they constitute one of the three pillars of the State. As
such they must be afforded a status above that of the Chapter 9 institutions.
Even more compelling is the conclusion that the courts [as an independent
institution] should similarly be accorded the financial and administrative
independence postulated in respect of Chapter 9 and other institutions. Even if
these other institutions are for some reason not all vested with such
independence, it does not require any further elaboration than to say that
financial and administrative independence for the courts remain a necessary and
indispensable constitutional imperative.
For much the same reasons the argument for institutional, administrative and
financial independence applies equally to the Magistrates Commission. This will
be considered further on.
It is submitted that full institutional, financial and administrative
independence should be established by law for the courts and that in order to
give effect thereto, the law should provide that the budget of the courts
should not be linked to the budget of a government ministry or department.
[4]Â Â Â Â Â Â Â Status
At paragraph 85 of the report of the Special Rapporteur on the independence
of Judges and Lawyers to the United Nations it is said:
"Whatever may have been their shortcomings in the past, magistrates
should not be looked down upon but instead brought into the mainstream of an
independent South African judiciary. In this regard, a recent landmark
judgement of the Supreme Court of Bangladesh is worthy of note: the Supreme
Court directed that the lower judiciary be completely separated from the
executive branch of Government"
Following the Colloquium convened by the Minister of Justice and
Constitutional Development in October 2000 a Policy on the Structure and
Functioning of the Courts and the Judiciary was formulated and submitted to the
Judicial Service Commission. Paragraph 3.1.1 of the Policy document reads as
follows:
"The following is recommended in respect of the lower courts as far as
a single judiciary is concerned -
*Â Â Â Â Â Â Â Â Â Â unjustifiable differences
between judicial officers in the Superior Courts and the lower courts,
particularly in respect of status, independence and judicial skills, should be
eliminated".
A question that arises in regard to status is whether all judicial officers
[including magistrates] ought to be classified as employees of the State, or to
put it differently, whether under the Constitution there is, strictly speaking,
a relationship of master and servant between the Government and such judicial
officers. In Hannah v Government of Namibia 2000[4] SA 940 [NmLC] this
question was answered in the negative as far as a High Court Judge was
concerned. In Secretary, Ministry of Finance and others versus Masdar
Hossain and others [an unreported case dated November 1999 in the Supreme
Court of Bangladesh Appellate Division], a decision of the Indian Supreme Court
in All India Judges Association and others v Union of India and others, 1993
4 SCC 288 was quoted with approval with regard to the question whether
magistrates in Bangladesh were employees. Again, the question was answered in
the negative.
Associated with the question of status is our proposition that senior judicial
officers within the magistracy who exercise supervisory authority over
magistrates ought to do so, not by virtue of a position of management over
employees, but by virtue of occupying a position of primus inter pares. Magistrates
should be referred to as "judges". There should be an appropriate
designation of office within each component of the judiciary; an appropriate
designation of court title; a judicial line of command; appropriate terms of
office and conditions of service. Finally, it is proposed that section 1 66(d)
of the Constitution be amended to read: "the Lower Courts".
Inasmuch as the Labour legislation appears to include magistrates in the
definition of 'employee', it is proposed that consideration be given to
amending the Magistrates Act, 1993 50 as to exclude the operation of section
210 of the Labour Relations Act and possibly also the Basic Conditions of
Employment Act to the extent necessary.
[5]Â Â Â Â Â Â Â Separation of administrative
duties and functions from judicial duties and functions
In the aforementioned Policy document it is recommended that judicial
officers in the lower courts should be relieved of administrative duties and
functions. It is proposed that this process should be informed and guided by
the principles and criteria referred to in South African Association of
Personal Injury Lawyers v Heath and Others 2001[1] BCLR 77[CC], and in
particular, the process should be measured by whether any such administrative
duties and functions are "appropriate to the central mission of the
judiciary".
Sections 14 and 18 of the Magistrates Act, 1993 provide the basic framework
for the assignment of administrative duties and functions to magistrates, and
those who are Heads of Office, in particular. We submit that these
provisions appear to be unconstitutional to the extent that administrative
duties and functions which are not "appropriate to the central mission
of the judiciary" are still being performed by magistrates. Similarly,
section 12[2][b] of the Magistrates' Courts Act, 1944 also appears to be
unconstitutional insofar as the Minister of Justice is empowered to expressly
prohibit additional magistrates and assistant magistrates from exercising
certain powers and performing or exercising certain duties which, by law, are
conferred or imposed upon magistrates. Such powers conferred upon the Minister
appear to be in conflict with section 238 of the Constitution.
Given the circumstances in which magistrates find themselves, it is proposed
that everything possible be implemented to enjoin the relevant authorities to
ensure the separation of functions by legislation and other measures, so as to
assist and protect the independence, and effectiveness of the courts.
We accordingly propose that administrative functions and duties be assigned to
the lawfully designated officials in the Department of Justice and that
magistrates be permitted to perform such duties and functions as are "appropriate
to the central mission of the judiciary".
The "administrative regions" should be Gazetted and the "administrative
heads" should be designated as required by law.
[6]Â Â Â Â Â Â Â Accountability mechanisms
It is proposed that a code of ethics, complaint procedures and disciplinary
procedures pertaining to magistrates should mirror those applicable in the High
Courts as closely as possible.
[7]Â Â Â Â Â Â Â Remuneration, allowances,
benefits and pensions
Remuneration, allowances, benefits and pensions of magistrates should be
determined by an independent body and their conditions of service and terms of
office should mirror those applicable in the High Courts as closely as
possible. In particular, the funding of salaries should be sourced from the
Revenue Fund and not be linked to the departmental personnel budget as is
currently the case. The merit award evaluation procedure for magistrates should
be discontinued at the appropriate time, as it is incompatible with judicial
independence.
It is proposed that if any form of synergy is to be attained in relation to the
magistracy's remuneration, the remuneration systems as applied in the executive
and legislative structures, rather than in the public service, should be used
as a comparison. In this sense the salaries of magistrates should be linked to
those of judges as proposed by the Commission on several occasions.
At paragraphs 39(g) and (k) of the Report of the Special Rapporteur to the
United Nations it is stated:
"Since 1993, when the Magistrates Commission was established,
magistrates are no longer part of the civil service; however, their terms and
conditions of service remain the same as those of civil servants, including the
pension scheme"
"Remuneration of magistrates, as stated earlier, is determined by the
Minister of Justice after consultation with the Magistrates Commission"
We have found that the following reflects the actual position:
·          The
salaries of public servants are fixed after a process of bargaining between
trade unions and employer representatives.
·          State
Departments formulate their personnel expenditure budgets on the basis of the
outcome of the agreement reached in the bargaining process.
·          In
the Department of Justice the funding of salaries for magistrates is provided
together with the personnel expenditure budget for the entire public service
component on its establishment.
·          The
determination of magistrates' salaries by the Minister of Justice in terms of
section 12(1)a) of the Magistrates Act, 1993 is thus entirely dependent on any
salary increase for public servants as agreed upon during the bargaining
process.
·          The
consultation between the Minister and the Commission is inevitably restricted
to the amount of money made or to be made available for magistrates' salaries
as a result of the public sector bargaining process, unless the Department can
find additional funds.
·          Neither
the magistrates nor the Magistrates Commission are party to bargaining process.
·          Monies
for salaries of magistrates are appropriated from the departmental vote and not
from the Revenue Fund.
Financial security ought to be a requirement for judicial independence under
the Constitution. The interposition of the Magistrates Commission, which is
required to engage in consultation with the Minister in terms of section
12(1)(a) of the Magistrates Act, 1993 provides the guarantee for financial
security, in theory at any rate. But whether such financial security or
guarantee for magistrates is realized in substance and in practice, where the
salary increases for magistrates are effectively determined by a public sector
negotiating body, is a question requiring the most serious consideration. The
Magistrates Commission is virtually faced with a fait accompli when
engaging in consultation with the Minister, for, if its recommendation for
salaries of magistrates is at variance with what has been agreed upon in the
public sector, the latter more often than not holds sway.
For magistrates to be individually and collectively independent, their salaries
must not only be secured by law, but should not be subject to undue
interference or interference outside the law, by the executive. Yet this seems
to be happening by linking their salaries to those of public servants, or where
the Department of Public Service and Administration is consulted in connection
with their salaries. The definition of "salary" in section 1
of the Magistrates Act, 1993 includes a motor car financing benefit.
The linkage of magistrates' salaries to those of public servants is also an "historical
accident" and therefore, the proposal for including the entire
judiciary in the legislation pertaining to the remuneration of public office
bearers(members of the executive and legislature) should be promoted
vigorously.
[8]Â Â Â Â Â Â Â Court sessions
It is submitted that official court times, sittings of the court and
adjournments are strictly a judicial matter. In criminal proceedings the
practice of starting court when the prosecutor is ready has led to the
perception that the prosecution is being favoured above the accused or the
defence. This practice appears to have developed from the time when magistrates
and prosecutors were public servants and when prosecutors were considered
subservient to the magistrates. Under the Constitution, both the prosecution
and the accused should be considered as litigants. Both should apply formally
to the court for any indulgence.
[9]Â Â Â Â Â Â Â Judicial immunity and
privilege
The immunity and indemnification of magistrates should be stated in clear terms
in legislation and should be the same as that of judges.
Magistrates should be indemnified for legal costs incurred in defending actions
brought as a result of acts or omissions in their capacity as judicial
officers.
The privilege enjoyed by judges in regard to the issue of a subpoena and
testifying in connection with the performance of their judicial functions
should be extended to magistrates by appropriate legislation.
B.        THE MAGISTRATES COMMISSION
AND ITS SECRETARIAT
[10]Â Â Â Â Â Â It would only be logical
for the sake of strengthening judicial independence to appoint the Secretariat
of the Magistrates Commission to operate independently from the Department of
Justice, to take over the personnel administrative functions pertaining to
magistrates which are currently being performed by the various Regional Offices
of the Department of Justice. If, as recommended in the abovementioned Policy
document, the Magistrates Commission and its structures are subsumed by the
Judicial Service Commission, the importance of the independence of the
Magistrates Commission and its Secretariat becomes the more apparent.
[11]Â Â Â Â Â Â There is a perception amongst
some magistrates that the Magistrates Commission is ineffectual. An honest
analysis of the Commission's functions will reveal, however, that even if this
perception is warranted, the ineffectiveness is not attributable to the members
of the Commission in their personal capacities. The empowering provisions of
the Magistrates Act, 1993 only allow the Commission to make a recommendation,
to advise or to report in regard to certain specified matters. It does not have
the power to give directions to anyone. A number of previous recommendations by
the Commission have not been implemented, whilst others appear to have been
simply ignored.
CHAPTER 4 : PROPOSALS AND RECOMMENDATIONS FOR TRANSFORMATION AND
RATIONALISATION
In this Chapter we make recommendations for the removal of all impediments
to the complete independence of the lower courts in order to establish a
judicial system suited to the requirements of the new Constitution. We propose
to make our recommendations in what we consider to be a realistic order of
precedence, with proposed time frames, where applicable.
A.        THE MAGISTRACY
[1]Â Â Â Â Â Â Â Institutional, Financial
and Administrative independence
Institutional, financial and administrative autonomy should be effected as
a matter of urgency, for the magistracy in particular. It has always been and
still is an integral component of the departmental organogram. Magistrates are
still perceived as being subordinate to, subservient to and responsible to the
head of the Department of Justice. Constitutionally the magistracy, as part of
the judicial pillar of state, stands on an equal footing with the executive
pillar of state. It is thus indefensible to perpetuate the existing structure.
It is recommended that the entire judiciary [including the lower courts] should
be structured as a separate institution with its own manifest identity, its own
administration and support structures, and financial independence. Government
officials who render the necessary support to the judiciary should be
responsible to and accountable to the highest relevant judicial officer in the
judicial hierarchy.
Any matters that relate directly to the exercise of the courts' judicial
function, whether judicial or administrative in nature, should be controlled
exclusively by the judiciary.
Financial independence is necessary, for the judiciary must be seen by the
public to be independent and free of the possibility of influence or pressure
by any executive organ of state. To make the judiciary dependent on budget
allocations from the very department that it is required to monitor is not
desirable, nor is it consistent with the need to be perceived as independent by
the public when dealing with their cases. Such executive power could render the
judiciary impotent through the denial of both financial and human resources.
It is recommended that full institutional, financial and administrative
independence be established by law for the courts and that in order to give
effect thereto, the law should provide that the budget of the courts should not
be linked to the budget of a government ministry or department. Monies
allocated to the judiciary should be sufficient to enable it to perform its
functions to the highest standards and the administration thereof should be
under the control of the judiciary. As was said in the New National Party case
[supra]: "[t]he Constitution places a constitutional obligation on
[other] organs of state to assist and protect the [courts] in order to ensure
[their] independence, impartiality, dignity and effectiveness. If this means
that old legislative and policy arrangements, public administration practices
and budgetary conventions must be adjusted to be brought in line with new
constitutional prescripts, so be it" [our paraphrasing].
[2]Â Â Â Â Â Â Â Separation of administrative
duties and functions from judicial duties and functions
If our submissions on this topic [supra] are correct, the result
would be that there is no legal basis upon which magistrates should continue to
perform a number of administrative duties and functions.
It is recommended that judicial officers in the lower courts should be relieved
of administrative duties and functions to the extent that they are not "appropriate
to the central mission of the judiciary". Section 12[2][b] of the
Magistrates' Courts Act, 1944 and sections 14 and 18 of the Magistrates Act,
1993 should be amended so as to bring them in line with the prescripts of the
Constitution. In particular, both sections 14(1) and 14(2) should be amended by
substituting the words " after consultation with the Commission" with
the words " in consultation with the Commission" All relevant
administrative functions and duties should be assigned to lawfully designated
officials in the Department of Justice in accordance with existing statutory
prescripts and magistrates should be assigned to perform such duties and
functions as are appropriate to the central mission of the judiciary". These
aspects should be statutorily provided for as a matter of urgency for the sake
of effective and efficient court management by the judiciary, under the
exclusive control of the judiciary.
The "administrative regions"should be gazetted and the
"administrative heads" should be designated as contemplated in the
Magistrates Courts Act, 1944.
[3]Â Â Â Â Â Â Â Status
In order to bring magistrates into the mainstream of an independent South
African judiciary they should be completely separated from any executive organ
of state. All legislation, measures or arrangements which render magistrates
employees or managers of any executive organ of state should be repealed. The
hierarchical and supervisory position of members of the judiciary within their
ranks should be clarified by appropriate legislation. It is recommended that
the holding of senior positions within the judicial hierarchy be based on a
position of primus inter pares (primacy amongst equals), rather than the
traditional management and employee/subordinate classification. Magistrates
should be referred to as "judges". There should be an appropriate
designation of office within each component of a single judicial entity; an
appropriate designation of court title; a judicial line of command and
appropriate terms of office and conditions of service. It is recommended that
section 166(d) of the Constitution be amended to read: "the Lower
Courts".
[4]Â Â Â Â Â Â Â Remuneration, allowance,
benefits and pensions
Remuneration allowances, benefits and pensions of magistrates should be
determined by an independent body and their conditions of service and terms of
office should mirror those applicable in the High Courts as closely as
possible. In particular, the funding of salaries should be sourced from the
Revenue Fund and not be linked to the departmental personnel budget as is
currently the case. The merit award evaluation procedure for magistrates should
be discontinued at the appropriate time, as it is incompatible with judicial
independence. It is recommended that the necessary legislative amendments be
effected as a matter of urgency.
In particular, section 12(3) of the Magistrates Act, 1993 should be amended by
deleting the following : including any revision and adjustment of salaries
and allowances of public servants since the latest revision and adjustment of
salaries of magistrates".
It is recommended that if any form of synergy is to be attained in relation
to the magistracy's remuneration [as suggested by the Minister of the Public
Service and Administration], the remuneration systems as applied in the
executive and legislative structures, rather than in the public service, should
be used as a comparison and that the salaries of magistrate be linked to those
of judges.
In order to ensure the independence accessibility and effectiveness of the
courts, it is recommended that those magistrates who, in the course of their
employment are required to travel extensively, should be accorded the benefit
of access to a motor vehicle scheme or facility with qualifying criteria and
guidelines, commensurate with their status within the judicial hierarchy.
[5]Â Â Â Â Â Â Â Court sessions
It is submitted that official court times, sittings of the court and
adjournments are strictly a judicial matter. In criminal proceedings the
practice of starting court when the prosecutor is ready has led to the
perception that the prosecution is being favoured above the accused or the
defence. This practice appears to have developed from the time when magistrates
and prosecutors were public servants and when prosecutors were considered
subservient to the magistrates. Under the Constitution, both the prosecution
and the accused should be considered as litigants. Both should apply formally
to the court for any indulgence.
It is recommended that the practice, to the extent that it may exist, where
magistrates and prosecutors travel together in the same vehicle to attend court
sessions be discontinued immediately. Any stipulation or condition in
departmental prescripts, requiring such traveling arrangement linked to the
allocation of any form of transport to judicial officers violates the
constitutional injunction of judicial impartiality and must be withdrawn.
[6]Â Â Â Â Â Â Â Accountability mechanisms
It is recommended that a code of ethics, complaint procedures and
disciplinary procedures pertaining to magistrates should mirror those
applicable in the High Courts as closely as possible and that the legislation
applicable to magistrates in this regard be reviewed urgently.
[7]Â Â Â Â Â Â Â Judicial immunity and
privilege
The immunity and indemnification of magistrates should be stated in clear
terms in legislation and should be the same as that of judges.
Magistrates should be indemnified for legal costs incurred in defending actions
brought as a result of acts or omissions in their capacity as judicial
officers. Appropriate legislation is recommended.
The privilege enjoyed by judges in regard to the issue of a subpoena and
testifying in connection with the performance of their judicial functions
should be extended to magistrates by appropriate legislation.
B.        THE MAGISTRATES COMMISSION
AND ITS SECRETARIAT
[1]Â Â Â Â Â Â Â In order to
strengthen the independence of the Magistrates Commission it is recommended
that time frames, within which the advice or recommendations of the Commission
should be implemented, be stipulated by law. It is recommended that any
contemplated rejection of the advice or recommendation of the Commission should
be preceded by a period of notice to the Commission, setting out the grounds
upon which it is intended to reject
it. The implementation of advice or a recommendation should be confirmed with
the Commission as a matter of course. Appropriate legislative amendments should
be effected.
[2]Â Â Â Â Â Â Â It would only be logical for the
sake of strengthening judicial independence to appoint the Secretariat of the
Magistrates Commission to operate independently from the Department of Justice,
to take over the personnel administrative functions pertaining to magistrates
which are currently being performed by the various Regional Offices of the
Department of Justice. If, as recommended in the abovementioned Policy
document, the Magistrates Commission and its structures are subsumed by the
Judicial Service Commission, the importance of the independence of the
Magistrates Commission and its Secretariat becomes the more apparent.
JUDGE PRESIDENT B M NGOEPE
CHAIRPERSON:Â Â Â Â Â Â Â Â Â Â Â MAGISTRATES
COMMISSION
May 2001
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