Salary Scales for Magistrates: hearings

Meeting report

JOINT MEETING OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE AND SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
18 October 2005
SALARY SCALES FOR MAGISTRATES: HEARINGS

Chairpersons: Ms F Chohan-Khota (ANC) and Mr S Shiceka (ANC)

Documents handed out:
Independent Commission for the Remuneration of Public Office Bearers Act 92 of 1997
Magistrates Act 90 of 1993
Government Gazette Vol. 482, No. 27959, 24 August 2005 [please email [email protected]]
Impact on Prosecutors: Determination of salaries, allowances and Benefits of Magistrates
Independent Commission for the Remuneration of Public Office Bearers: memorandum
Race and Gender breakdown of magistrates
Additional expenditure: implementation of motor vehicle financing benefit
Department of Justice and Constitutional Development internal memorandum: employment equity information on magistrates
National Treasury presentation
National Prosecuting Authority presentation
Department of Justice and Constitutional Development presentation

SUMMARY
The Committee was briefed on the background to the recommendations made by the Independent Commission on the Remuneration of Public Office Bearers on the salaries of magistrates. On 24 August 2005, the recommendations had been published in the Government Gazette without passing through the proper parliamentary process. If the recommendations for the new salary scales were implemented, the cost of magistrates’ salaries would increase from R668 million to R805 million. The Department recommended that the National Revenue Fund provide for the salary increases as its budget would not cover the increase.

Members were concerned by the disparity between salaries for different legal professions, and the lack of an integrated remuneration dispensation in the justice sector. The Department had completed a review of the salary levels of judicial office bearers, and would present its findings to National Treasury in November.

National Treasury briefed the Committee on its engagement with the recommendations of the Independent Commission on the Remuneration of Public Office Bearers on new salary packages for magistrates. National Treasury proposed that the motor vehicle allowance should be included in the current salary packages of magistrates, but the Commission did not support this proposal. Funds required for the implementation of the Commission’s recommendations did not qualify as unavoidable and unforeseeable expenditure in the adjustment budget process, and so would have to be provided for in the Department budget.

National Treasury claimed that there were two possible approaches to funding the magistrates’ salary increases: either the Department could shift funds within its budget vote according to the adjustment budget process; or the usual budget process could be followed, whereby the appropriate adjustment would be made in the following year. The Committee felt that the impasse between the Department and National Treasury was a transitional problem that resulted from the process of moving the magistrates into the judiciary.

Finally, the National Prosecuting Authority (NPA) briefed the Committee on the disparity between the salaries of prosecutors and magistrates. As many prosecutors were being attracted to the magistracy, the NPA recommended that magistrates’ salary structure should be reviewed according to job evaluation principles, and if a motor vehicle allowance was granted to magistrates, it should also be granted to prosecutors.

MINUTES
Department of Justice and Constitutional Development briefing
Mr J Skosana (Department Chief Director: Court Services) briefed the Committee on the background to the recommendations of the Independent Commission for the Remuneration of Public Office Bearers on the salaries of magistrates. Prior to 1995, magistrates were classed as civil servants and their salaries were determined through a collective bargaining process. From 1995 onwards, the Minister of Justice together with the Minister of Finance determined the salaries of magistrates and judges. In 2003, both magistrates and judges were defined as public office bearers, and the Independent Commission for the Remuneration of Public Office Bearers was to advise the President on their salary scales.

The Independent Commission for the Remuneration of Public Office Bearers Act, amended in 2003, directed the Commission to publish its recommendations on the salaries of magistrates in the Government Gazette for comment. Once the National Assembly and the National Council of Provinces had passed the recommendations, the President would approve the remuneration with a notice in the Government Gazette. However, on 24 August 2005, new salary scales for magistrates, back-dated to April 2005, were published in the Government Gazette without passing through the proper Parliamentary process.

The Department’s current budget for magistrates’ salaries was R668 million. For the year 2005/2006, the Department had transferred R647 million to National Treasury for magistrates’ salaries, leaving a deficit of R21 million. If the recommendations for the new salary scales were implemented, the cost of magistrates’ salaries would increase from R668 million to R805 million, and the Department’s deficit from R21 million to R158 million. The Department recommended that the National Revenue Fund provide for the salary increases.

Discussion
Ms Chohan-Khota asked whether the Department or National Treasury would provide the funds for the magistrates’ salary increases. Mr Skosana replied that before the current recommendations for salary increases were approved, the Department had projected an increase in the cost of magistrates’ salaries from R668 million to R705 million in 2006/2007. The Department would transfer an amount of R11.8 million to National Treasury in 2006/2007 to reduce the deficit of R21 million. However, the Department’s budget did not provide for the current recommendations on magistrates’ salary increases.

Ms Chohan-Khota clarified that the Department could not implement the new salary scale for magistrates until the deficit of R21 million had been cleared. She requested that the Department provide the Committee with information on the incremental increase of magistrates’ salaries since 1994.

Mr Skosana explained that the cost of magistrates’ salaries would increase to R805 million if the current recommendations were implemented. However, this amount only provided for remuneration and did not include administrative costs. Administrative costs, such as the taxation on motor vehicle allowances, should be managed by the heads of courts. Ms Chohan-Khota urged the Department not to leave these matters to the heads of courts, but to draft guidelines on the provision of motor vehicle allowances for magistrates. Most magistrates were office-bound, and did not require motor vehicle benefits.

Advocate Simelane (Department Director-General) said that state attorneys and prosecutors were being paid considerably less than magistrates (in the case of prosecutors, the variance was 73.7%). If the recommendations on the salary increases for magistrates were implemented, there would be a ‘mass exodus’ of prosecutors from the Department to the magistracy. The salary levels for different legal posts should be assessed as many legal practitioners performing similar functions were being paid different amounts.

The Department needed to create an environment in which experienced prosecutors would remain in their positions, as many courts were using a large number of inexperienced prosecutors. Therefore the Department would argue, in its negotiations with National Treasury, that remuneration for prosecutors and magistrates should be equal.

Ms Chohan-Khota stated that the criminal justice system stood on three pillars: the magistracy, prosecutors, and public defenders. As there were differences between these professions, magistrates and prosecutors should not necessarily earn the same amount. However, there should be ‘parity’, as the current variances in salary levels were ‘enormous’. Therefore the Department should formulate principles for rightsizing the salary levels of all legal practitioners. The Department should also create a salary level lower than level 11 for graduates who were without experience.

Advocate Simelane responded that the Department had added a minimum requirement of two years’ experience for level 11 and had also started an internship programme. The prosecution service should also create a new entry level for graduates.

Ms Chohan-Khota enquired when the Department would complete the process of reviewing the salary levels of judicial office-bearers. Advocate Simelane replied that the Department had already completed this process, and would present its findings to National Treasury in early November, when it would request National Treasury to implement a new job grading system and salary scale for magistrates.

Ms Chohan-Khota pointed out that the National Commission for the Remuneration of Public Office Bearers had also conducted a review of public office bearers’ salaries, which should be compared with the Department’s review. The Commission took the view that its statutory mandate included magistrates but did not extend to prosecutors. However, the Commission had ‘misinterpreted the legislation’ in this regard. Advocate Simelane agreed that the Commission’s recommendations on the salaries of magistrates also had implications for prosecutors.

Ms Chohan-Khota commented that institutions like the Department and the Commission were relatively young, and were still discovering co-operative governance. However, self-analysis was important in this situation, and the Department should ask itself whether there was an earlier opportunity to engage the Commission its recommendations.

Mr L Joubert (IFP) noted the Department’s concern that many prosecutors would join the magistracy if the Commission’s recommendations on magistrates’ salaries were implemented, and asked whether prosecutors were not, in any case, a ‘pool’ for magistrates. Advocate Simelane acknowledged that prosecutors were a pool for magistrates, yet the potential existed for a large movement of personnel from the prosecution service to the magistracy if magistrates’ salaries were increased. It was necessary to keep experienced personnel in legal services such as the prosecution service and the state attorney’s office, as these services would make use of the private sector if their personnel were inexperienced.

National Treasury briefing
Ms V Vumendlini (National Treasury Director: Public Sector Personnel Policy) briefed the Committee on the National Treasury’s view of the recommendations of the Independent Commission on the Remuneration of Public Office Bearers on new salary packages for magistrates. The Commission approached National Treasury for comment on its proposal that magistrates should be provided with a motor vehicle allowance at the same time as requesting the concurrence of the Minister of Finance on this matter.

National Treasury was not opposed to the principle of providing a motor vehicle allowance to magistrates, but was opposed to the manner in which the benefit would be implemented, for a number of reasons. First, the proposed motor vehicle allowance would increase magistrates’ salary packages by approximately 20% without revising their responsibilities. Second, the objective of the motor vehicle allowance was to enable the mobility of magistrates between service delivery points, yet the Commission provided no guidelines for determining which magistrates would be eligible for the allowance according to their job responsibilities. Thus National Treasury proposed that the motor vehicle allowance should be included in the current salary packages of magistrates, which should remain equivalent to the Middle Management Service packages applicable to prosecutors. The Commission did not support this proposal.

National Treasury recommended that the Department develop an integrated remuneration dispensation to improve capacity development and the retention of skills in the justice system. National Treasury advised the Committee that implementation of the Commission’s recommendations would require a large increase in the baseline estimates for the compensation of magistrates. As this increase did not qualify as unavoidable and unforeseeable expenditure in the adjustment budget process, it would have to be provided for in the Department budget.

Discussion
Ms Chohan-Khota queried whether the funds for the implementation of the Commission’s recommendations would be drawn from the Department or National Treasury, given that neither the Department nor National Treasury had budgeted for this increase in magistrates’ salaries. Ms Vumendlini answered that the Department should be able to fund the increase in magistrates’ salaries through reprioritisation within its budget.

Ms Chohan-Khota asked what the ‘take-home’ value of the magistrates’ salary packages recommended by National Treasury was. Ms Vumendlini replied that the packages were calculated on a ‘cost-to-employer’ basis that enabled magistrates to structure their salaries according to their needs. The motor vehicle allowance would not be an additional benefit, but would be included in the salary package. Ms Chohan-Khota commented that National Treasury’s proposal was not as attractive to magistrates as the R65 000 motor vehicle allowance recommended by the Commission.

Mr L Landers (ANC) suggested that after the implementation of the increase in magistrates’ salaries, prosecutors, state attorneys, and other civil servants would make demands for equity of remuneration with magistrates. He questioned where this process of equalising salary scales would end. Ms Vumendlini responded that, at present, the Commission determined magistrates’ salaries, while the salaries of other legal practitioners were calculated in the Department’s budget process. The entire justice cluster required an integrated remuneration dispensation that provided ‘equal pay for work of equal value’.

Mr Shiceka suggested that the Department of Public Service and Administration should become involved in a situation where the Department had not budgeted for the magistrates’ salary increases, and National Treasury could not provide the amount as it was too large to be classified as unforeseeable and unavoidable in the adjustment budget process. Mr M Mzizi (IFP, Gauteng) said that the Department should consider implementing the new salary scales for magistrates by staggering payments.

Ms Chohan-Khota commented that National Treasury’s recommendations would be helpful for determining salary scales for judicial officers in the future. However, one factor that was not dealt with was the Public Finance Management Act (PFMA), which stipulated that funds could not be drawn from National Treasury without the concurrence of the Minister of Finance. In the middle of the financial cycle, R170 million was needed to fund the magistrates’ salary increases, yet both the Department and National Treasury were insisting that they could not provide the funds for this.

National Treasury recommended another alternative to the immediate implementation of the magistrates’ salary increases. The usual budget process could be followed, which would mean that implementation of the salary increases would be delayed, but when implementation would take place was not known.

Mr V Mbethe (National Treasury Chief Director: Protection Services) replied that there were two possible approaches to funding the magistrates’ salary increases: either the Department could shift funds within its budget vote according to the adjustment budget process; or the usual budget process could be followed, whereby the appropriate adjustment would be made in the following year. The budget for the next three years would project salary costs by taking into account inflation, performance pay progression, and the appointment of additional staff.

Mr Joubert felt that, in the present predicament, it would be unfair to ask the Department to fund the salary increases, and National Treasury should provide this money. Mr G Solomon (ANC) agreed that the National Treasury was responsible for providing the funds for the salary increases.

Mr J Johnson (National Treasury Director: Justice and Secret Services) claimed that the Accounting Officer of the Department was in a difficult position as the PFMA stipulated that the Accounting Officer could not commit the Department to expenditure that was not budgeted for. Ms Chohan-Khota commented that Mr Johnson’s claim was ‘slightly unfair’ since the decision on the approval of the magistrates’ salary scales was imposed on the Department, and the Accounting Officer was not involved. It was not accurate to say that the Department had committed themselves to expenditure in the form of magistrates’ salary increases.

Ms Chohan-Khota emphasised that ‘parity’ rather than ‘equity’ should be aimed at in the salary scales of the legal professions, and to this end a uniform remuneration system should be developed. The input made to the Committee on this matter should have been made to the Independent Commission on the Remuneration of Public Office Bearers. The answer to the impasse between the Department and National Treasury ‘would be a political one’.

Advocate Simelane commented that magistrates were part of the judiciary, and the Department was not responsible for their remuneration. The Department was unable to fund magistrates’ salary increases, and any savings in the budget would be used in programmes for the provision of court services.

Mr Landers enquired what the provision in the Magistrates’ Act for the payment of magistrates’ salaries by direct charge to the National Revenue Fund entailed. Mr Mbethe explained that a direct charge to the National Revenue Fund for items such as the salaries of magistrates guaranteed that the amount would be paid. Ms Chohan-Khota added that National Treasury also ‘ringfenced’ the amount for the salaries of judges and transferred this to the Department. National Treasury would provide for increases that occurred during the year. Mr Johnson clarified that, in practice, National Treasury allocated an amount to the Department for the payment of salaries, and was the ‘bank’ to guarantee that payment took place.

Ms Chohan-Khota clarified that the Independent Commission on the Remuneration of Public Office Bearers had never before recommended a higher increase in magistrates’ salaries than National Treasury had anticipated. The current impasse was a transitional problem that resulted from the process of moving the magistrates into the judiciary.

National Prosecuting Authority briefing
Ms E Dhlamini (National Prosecuting Authority: Acting Head Human Resources Management) briefed the Committee on the impact on prosecutors of the recommendations of the Independent Commission on the Remuneration of Public Office Bearers on magistrates’ salary levels. The Commission’s recommendations entailed a 5.75% salary increase for magistrates at entry level (a salary of R273 444 per annum) plus a motor vehicle allowance of R68 361 per annum. From July 2005 the entry level salary for a prosecutor was R105 228 per annum, and for a state advocate R143 656 per annum.

During the past three intakes from May 2004 to October 2005, 86 Prosecutors had left the National Prosecuting Authority (NPA) for the Acting Magistrates Course. The attraction of prosecutors to the magistracy by higher salary levels was a problem, as many inexperienced prosecutors were standing against experienced advocates. The NPA recommended that the magistrates’ salary structure should be reviewed according to job evaluation principles, and if a motor vehicle allowance was granted to magistrates, it should also be granted to prosecutors.

Discussion
Mr Joubert commented that the prosecution services ‘had his sympathy’, but he was dissatisfied with the NPA’s recommendations since prosecutors did not occupy the same position as magistrates and therefore should not make recommendations on magistrates’ salaries.

Mr Mzizi urged that if magistrates were given a motor vehicle allowance, this should be extended to prosecutors as prosecutors and magistrates possessed the same qualifications. In order to prevent prosecutors from moving to the magistracy, the Department should find a way to attract employees to legal professions by a ‘call to duty’ rather than by salary levels.

Mr Landers enquired whether the NPA had made a submission to the Independent Commission on the Remuneration of Public Office Bearers on the need for a review of remuneration according to job evaluation. He questioned if prosecutors would apply to the bargaining council if the Commission’s recommendations on magistrates’ salaries were implemented.

Ms M Sparg (NPA Chief Executive Officer) replied that the NPA would not be applying to the bargaining council for motor vehicle allowances for prosecutors. The NPA did seek to make a submission to the Commission, but the Government Gazette of 24 August 2005, containing the President’s approval of the Commission’s recommendations, was published before this was possible.

Mr Shiceka said that the disparity in salaries between magistrates and prosecutors was ‘inexplicable’ as they were equally qualified employees. Ms Sparg responded that the disparity should be addressed through the creation of an integrated remuneration system for the legal professions.

Ms Chohan-Khota stated that the Committee would draft a report containing all the submissions made to it, so that Members could engage not only on the present impasse, but also on the procedures for co-operation between different government institutions. The Committee would monitor the negotiations between the Department and National Treasury, but could take action without feedback from these negotiations.

The Committee had been instrumental in maintaining the dignity of the magistracy as part of the judiciary, and was ‘appalled’ at what had taken place in the magistracy since the beginning of September. The majority of magistrates were not at fault, but some were absenting themselves from work on the grounds of ‘stress’ and were behaving like civil servants rather than judicial officers. Ms Chohan-Khota requested that the Department provide the Committee with a full report of those magistrates who had been absent from work since 8 September. If disciplinary action was required, the Committee would take such action.

The meeting was adjourned.