Constitutional Court & High Court Judges: Briefing

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Justice and Correctional Services

24 May 2001
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

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]        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]        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]        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]        Section 165[2] of the Constitution states that the courts are independent. It therefore recognizes the independence of the courts as an institution.

[2]        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]        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]        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?

A          THE MAGISTRACY

[1]        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]        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]        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]        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 -

*           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]        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]        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]        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]        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]        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]       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]       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]        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]        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]        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]        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]        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]        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]        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]        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]        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:            MAGISTRATES COMMISSION
May 2001

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