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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
16 October 2001
JUDICIAL OFFICERS AMENDMENT BILL; THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL AND THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA SECOND AMENDMENT BILL: DELIBERATIONS
Chairperson: Adv. de Lange (ANC)
Documents Handed Out:
Constitution of the Republic of South Africa Amendment Bill [B68–2001]
Constitution of the Republic of South Africa Second Amendment Bill [B78–2001]
Judicial Officers Amendment Bill [B72-2001]
Summary of Submissions in respect of the Judicial Officers Amendment Bill
The Committee concentrated on the issue of the alterations to the terms and tenure of the Constitutional Court Justices’ and the issue of ‘same-sex’ partners.
Judicial Officers Amendment Bill
Mr Bassett: Department of Justice, had prepared a copy of the existing Judges’ Remuneration and Conditions of Employment Act 88 of 1989 showing the proposed changes to it by the Judicial Officers Amendment Bill. He had also compiled a report on the Summary of the Submissions from the public consultation exercise. Adv de Lange decided to focus only on the narrow issue of the changes to the position of the Constitutional Court judges necessary in light of the proposed Constitutional Amendments Bills and the issue of same-sex partners of judges in light of the recent court decision on the same matter.
Adv de Lange (ANC) said that the outstanding issues would need to be looked at more fully next year as the issues involved were too complex and required more information from the Department and the Committee had received the Bills too late. He proposed that the Committee would not pass the entire Judicial Officers Amendment Bill but would rather deal with the two important issues separately. Those issues left outstanding would be taken up again next year.
Mr Bassett proceeded to take the Committee through the proposed changes clause by clause.
Mr Bassett said he had sought to maintain that the principles underlying the treatment of Constitutional and other judges were the same, Clause 3 being the area where exceptions were located. In Sub-clause (3) the word ‘appointed’ had been changed to read ‘hold office.’
There was a typing error in Sub-clause 3(a) as it should read ‘4(3) or (4)’. This restated the principle as relating to other judges, but maintained the ‘cap.’
Adv de Lange (ANC) said it was important to remember Constitutional Court Judges had two aspects to their tenure: that they served for 12 years and their age requirement. For example, the proposals would relate to five or six on the current Constitutional Court bench. For example, Judge Ngcobo had been a judge previously for a few years before becoming a Constitutional Court judge. When his term expires, he will have only served 13 or 14 years. He will now be able to elect to stay on as a judge for the full 15 years. There must be a section of the Act that says ‘or such shorter period as the President deems fit.’ He felt that Clause (3) should also be made subject to Clause (4) to ensure that the oldest a serving Constitutional Court judge could be was 75 years old.
Ms Chohan-Kota (ANC) asked if the provisions of Sub-clause 3(c) were not rather confusing as they seemed to relate to another part of the Act?
Adv de Lange (ANC) said that sometimes the President would turn down a request from the judge that she or he should be discharged. In these cases the judge needed another means to be freed from her or his duties.
Ms Chohan-Kota (ANC) said that it seemed a bit untidy that there would be two separate parts of the Act relating to the discharging and resignation of judges. Perhaps for the sake of clarity these clauses could be combined.
Mr Molewa (ANC) asked what happened to a judge who was physically incapable of completing a 12 or 15 year term of office? Did they qualify for pension and benefits?
Mr Bassett said that Section 6(3)(a) of the Act provided a formula to calculate the benefit payable in these circumstances.
Mr Swart (ACDP) asked if the discharge from office by the President was to be read in conjunction with Section 171 of the rules relating to the Judicial Services Commission? Did the incapacity include physical incapacity?
Adv de Lange (ANC) said no, the incapacity referred to here was based on the ‘impeachment’ procedures relating to mental incapacity. The proposed changes appeared to extend the existing principles of the Act and would require an amendment to the draft Constitutional Amendment Bill also.
Sub-clause 5(c) contained an omission in that the ‘Section 174’ referred to was Section 174 of the Constitution. Section 174(5) states that there must always be five judges on the Constitutional Court bench. This sub-clause was important, as it would allow, for example, O’Regan J to apply for a post as a judge of the Supreme Court of Appeal. But provision had to be made to ensure that she did not get a pension following her discharge from active service on the Constitutional Court bench then receive a salary as a serving judge of another bench.
Adv de Lange (ANC) said that Kriegler, Ackermann and Goldstone JJ needed to have the option of going back to their former careers. Mr Bassett said that Sub-clause 5(b)(ii) covered these eventualities. Adv de Lange (ANC) said this must be made explicit in Sub-clause 5(c) to ensure Constitutional Court judges were not paid twice. Mr Bassett said that whilst the existing Act is silent in this regard, this concept is currently ‘read in’ to it to prevent one judge from having two calculations of ‘active service.’
Ms Camerer (NNP) said that the alterations would mean that there were only two categories of Constitutional Court judges who would not serve more than 12 years. Those who had, prior to appointment to the Constitutional Court bench, served as a judge in another court for more than three years; and those judges who reached 75 before they had served their twelve year tenure.
An ANC member asked if a Constitutional Court judge took office as a judge in a lower court after their twelve year term, would they continue to be paid the remuneration of a Constitutional Court judge? Adv de Lange (ANC) said that the principle was that the judge retained the highest salary they had been paid even if they were to become a High Court judge afterwards. Mr Bassett asked if this would also be acceptable for the calculation of their pension? Adv de Lange (ANC) said yes and whatever consequential alterations were needed to the legislation should be made accordingly.
Adv de Lange (ANC) queried the use of the word ‘expires’ as it really meant the end of the 12 year period, not necessarily the expiration of their term of office. Were other Committee members were happy with the principle?
Dr Delport (DP) asked if a Constitutional Court judge exceeded a 15 year term of office, would they get a pension which exceeded their annual salary? Mr Bassett said that they did not get a larger pension, however, their one-off gratuity payment did increase with each additional year served.
Adv de Lange (ANC) said that he had calculated the true value of this ‘incentive’ to continue in active service and found that it did not really operate as an incentive at all. Why must it be limited to 20 years service if judges were being appointed at a younger age now than before? The cost to the state in employing a fresh judge to replace the retiring one would far outweigh the cost of allowing the incentive to accrue for longer than 20 years.
Mr Bassett asked about the question of judges ‘doing camps.’ This is the requirement that upon retirement but between the ages of 70 and 75, a judge must remain prepared to carry out up to three months work for the state if requested. Adv de Lange (ANC) asked if he had figures on how widespread this requirement actually is? Mr Bassett said he would get figures from the Department, but that he didn’t think it amounted to many people. However, Sub-clause (4) penalised any judge who refused to comply with a request to carry out the duty. Adv de Lange asked what the requirement sought to achieve? Dr Delport (DP) said it was his understanding that the life tenure of a judge should be until the age of 75, and that the ‘pension’ was actually a salary (as it increased in incremental stages). In order to justify the increase, the judge must appear to be ready for work. Mr Bassett informed the Committee, however, that a judge so compelled to work received their pension and a further remuneration.
Adv de Lange (ANC) suggested that the three months requirement be struck out, but that the duty should remain. Constitutional Court judges should definitely be included as they would certainly be required to carry out these duties.
Mr Swart (ACDP) asked what happened in the case of a judge who was asked under the clause to work on the bench, but the case took longer than three months? Was the case passed to another judge? Did the judge work for longer than they were legally compelled to? Adv de Lange (ANC) said this was a separate issue. However, as the provisions stood, a judge would not be able to take up alternative employment after their discharge from active service unless their subsequent employer was happy with the fact that they could be called away for up to three months of the year. Mr Mabeta (UDM) queried if the provisions meant that a judge would be paid for three months service, even if they were not needed to carry out any duties.
Mr Bassett asked the Committee for their views on Clause [2A]. Adv de Lange (ANC) said it should be removed as Constitutional Court judges should not be excluded. The only issue to deal with was whether there should be a three-month limit on the duty.
Adv de Lange (ANC) asked what was the difference between ‘resignation’ and ‘removal’ as the heading for the clause had been amended? Mr Bassett said it was simply that had you resigned, and chosen not to be a judge anymore, you would not get an annually adjusted salary. Adv de Lange (ANC) said it was odd that the only permissible ground for resignation was that the judge was at least 65 and had served for fifteen years. Had judges who did not fulfil this requirement not already resigned, such as Judge Heath? Mr Bassett agreed this was the case. Adv de Lange (ANC) pointed out that Sub-clause (5) contained an error in the formula as the term of office was shown as seven, not fifteen, years. This entire clause had to be looked at again. Firstly, it did not deal with all resignations and the resultant changes to their gratuities and salaries and, secondly, the one-off gratuity was being removed from Constitutional Court judges.
Dr Delport (DP) said that Sub-clause 3(1)(b) and 10(1) were almost identical, yet if the judge persuaded the President to let them go, they kept their benefits, but if they resigned after precisely the same period of time and at the same age, they lost some benefits. Ms Chohan-Kota (ANC) agreed and asked if the word ‘shall’ in sub-clause 3(1)(b) should not instead be changed to ‘may’? Adv de Lange (ANC) said no because the decision of the judge to resign had to contain a punitive element. He asked why Clause 10 referred to ‘removal’ not ‘resignation’? He also felt that Sub-clause 10(6) should be removed as it required amendment to take account of Constitutional Court judges. He was not clear if Sub-clauses (4) and (5) related to them.
Adv de Lange (ANC) was concerned that the references to ‘constitutional judge’ and "Constitutional Court Judge’ would lead to confusion. Was there a need for three terms? Surely ‘Constitutional Court Judge’ and ‘other judge’ was sufficient.
Adv de Lange (ANC) reminded the Committee of the recent decision regarding the ‘same-sex’ partners of judges. He said the decision had been anticipated, although the case had to proceed to the Constitutional Court for their confirmation of the invalidation of the relevant section of the Act.
Mr Bassett said that the Law Commission was carrying out research into the topic of same sex marriages but that the report was not expected before 2003. There was also a new definition of ‘spouse’ to allow for changes in the recognition of customary unions. Adv de Lange (ANC) asked why there was not a requirement for a judge with more than one spouse to register which spouse had to get priority as the proposals did not seem to preclude the state paying for all of his wives.
Adv Masutha (ANC) said that underlying even these proposals was the assumption that marriage was the norm. The Constitutional Court had shown that this assumption must be revisited. If the Committee were intending to introduce a new register they would have to look at the administrative implications. A similar problem had arisen with regard to the Adoption Act. Adv de Lange (ANC) questioned this necessity as he said they were only talking about four or five judges. Marriage certificates would mean that only gay judges needed to register their ‘partner.’
Ms Chohan-Kota (ANC) said she had no problem with extending the registration requirements to spouses of the judge, but what happened if a judge had a spouse but registered a partner with the Department? Which one would take preference in the event of the judge’s death? Adv de Lange (ANC) said this was also a problem with regard to polygamous marriages.
Mr Swart (ACDP) said that, in light of these issues, perhaps the Committee should hold over its decision until the Law Commission report was available. There was also a question of where children stood in relation to the benefits if the spouse or partner who qualified for the benefits died at the same time as the judge. Mr Bassett said that the gratuity was paid to the estate, not the spouse, but that the pension was paid to the spouse as to do otherwise may result in pension payments to a toddler for the rest of their life.
Adv de Lange (ANC) said that a decision could not wait until 2003, although the Committee may be able to hold the matter over until the new year.
Mr Swart (ACDP) asked why the common law delictual principles relating to breadwinners, that benefits be split between the surviving relatives, could not be invoked to deal with polygamous marriages? Adv de Lange (ANC) said that this was because they were dealing with statutory requirements, not common law requirements.
Mr Mzizi (IFP) said, notwithstanding the terms of the Bill of Rights, he was opposed to providing state benefits to the same-sex partners of judges as this was not a lifestyle Parliament should be encouraging. What would happen if the gay couple had adopted children? Would the state need to provide for them too?
Adv de Lange (ANC) reminded him that whilst the equality clause of the Bill of Rights may be limited by legislation, the rights enshrined could not be eradicated. As the state was prohibited from discriminating against people on the basis of their sexual orientation, the Committee had to provide a means whereby same sex partners were included in legislation.
Adv Masutha (ANC) tried to return to the issue of the register asking why it was that partners had to be registered but not spouses? What was the rationale behind the distinction? Were all spouses exempt, or only those not registered at Home Affairs? Adv de Lange (ANC) said the only reason to register partners was to ensure legal certainty and prevent disputes over who should benefit in the event of the judge’s death. This meant that same-sex partners and judges with multiple partners would need to register the beneficiary. The situation with monogamous spouses would be easy as they would have a marriage certificate to prove their status as sole beneficiary.
Adv Masutha (ANC) then asked what would happen to the partner or spouse who was not registered through the negligence of the judge? Where would their claim lie?
Mr Magwanishe (ANC) said he found sympathy with Mr Swart’s suggestion that the Committee follow the common law position when deciding on the treatment of multiple spouses.
Ms Magazi (ANC) asked what would happen if the judge had been paying a ‘maintenance order’ but that the pension went to someone who had no responsibility for the children? Adv de Lange (ANC) said the maintenance duties would die with the judge. It was unfortunate, but South African law was underdeveloped in this area.
To summarise, Adv de Lange (ANC) told Mr Bassett that he needed to get clarity from the Department on some underlying policy considerations. If these were not forthcoming, the Bill would need to be held over until the New Year. In the meantime, as the Committee’s main concern was that the tenure of Constitutional Court judges be amended, all other issues should be removed from the Bill. This would mean that all issues relating to the alterations to the terms and conditions of Constitutional Court judges could be viewed in isolation and not cluttered by the other changes. He wanted to have the Constitutional Court judges’ terms and conditions completed by the end of the week. If there was time later, the Committee could re-visit the issue of same-sex partners.
He outlined the Committee time-table thereafter. All the Committee’s Bills should be passed by Parliament by 2 November 2001.
These would be:
The Constitutional Amendment Bill
The Second Constitutional Amendment Bill
Parts of the Judicial Officers Amendment Bill
The Bill on Plea Bargaining
The Judicial Matters Amendment Bill; and
perhaps the Interception and monitoring Bill, although this may need to be held over as the drafter working on it had been told to prioritise another matter.
He also wanted the Department to present their budget figures to the Committee during the last week of Parliament as they had not done so when requested in June.
The Constitution of the Republic of South Africa Amendment Bill
Adv de Lange noted that Clause 10 was rejected because it would be combined with the Section 230 of the Constitution to give rise to the new Section 230A.
Adv de Lange said the clause must be changed to read " A municipal Council may, in accordance with national legislation…". This would mean that all those matters in Section 230A would be subject to national legislation.
Mr Dhlali (ANC) from the Portfolio Committee on Local Government referred to Subclause 230A (2)(b) which provided that a bridging loan must be repaid within the same fiscal year. He asked what would happen if this were not possible. He was concerned because the subclause created an obligation.
Adv de Lange said that this money was bridging finance and would only be taken out on loan where the municipal council was waiting for money that it knew it was going to get. This would concern the current account of the council and would be necessary for day-to–day type expenditure.
Ms F I Chohan-Kota said that the Committee understood this fact but added that it would be hard to order one’s affairs so that they coincided with the end of the fiscal year. If the council needed money but also knew it was going to receive money from overdue accounts. It then took out money with every intention of using the money expected to pay back the money in the same fiscal year. However, and unfortunately for that council it does not receive that money and cannot make the payment. What then would happen?
Adv de Lange said the section needed to be read very carefully. He suggested that perhaps the problem arose out the use of the word ‘repaid’ and that it would be better for the section to read otherwise. He explained that in his opinion the intention of this clause was to provide that the bridging loan be accounted for in the same fiscal year instead of the debt being carried into the next fiscal year. If this were done then money would have been spent in the previous year, with the negative balance being carried forward. The council would then quite possibly go into the next fiscal year with a negative balance. Instead it was the intention of this clause to provide that bridging loans be accounted for in the same fiscal year, that the books reflect that this loan was taken out in the previous year. The Committee agreed and held that the intention behind the clause was to provide that loans be accounted for in the same fiscal year. Adv de Lange however told Mr Khala to discuss this matter with someone more learned on the subject. Adv de Lange added that in absence of such a provision, the accounting books would reflect an expenditure in the current year that would have taken place the previous year.
The Constitution of the Republic of South Africa Second Amendment Bill
Adv de Lange reminded the Committee that the previous day they had decided to remove references to the words ‘national’ and ‘provincial’. These words were removed because it was felt that in those circumstances the provisions could only be interpreted as ‘national’ or ‘provincial’ respectively. Today however, Adv de Lange told the Committee that the Department of Finance had discussed it and realised that in the absence of those words, the provisions could be interpreted to include municipal , in both instances. This would be too wide an interpretation and the words ‘municipal’ and ‘provincial’ would have to be reinserted.
Clauses 3,5,6 and 7
Clauses 3, 5, 6 and 7 were all rejected. These clauses were the problematic intervention amendments that would be left out of the Bill for now and reconsidered next year.
Clause 9 was the equitable share provision. Adv de Lange reminded the Committee of the presentation by Prof Christina Murray from University of Cape Town. Prof Murray had come before the Committee to show the problems which such a provision would bring. The Department of Finance had since confirmed that Prof Murray’s submission was indeed correct.
Clause 12 related to the appointment of representatives to the Financial and Fiscal Commission (FFC). The clause had now been drafted to provide that the President would appoint; (a) two persons from a list submitted by the provinces following a process prescribed by national legislation; and (b) two persons selected from a list submitted by organised local government following a process prescribed by national legislation.
Adv de Lange feared that the clause was drafted to broadly. It provided that Provinces could compile a list from which the President would then appoint people to the FFC. Adv de Lange’s concern was that in this section a province could submit a list of two people. The President would then in effect have no choice. His suggested solution was to provide that the President could go beyond the list. This could be achieved by adding the word ‘including’ before the word ‘from’ in both subclauses. Another solution would be to stipulate how many people the list would have to consist of.
Adv de Lange felt uneasy with the structure of these subclauses. He suggested that a better formulation would be to provide that the President could appoint in the following manner:
-two persons, after consulting the Premiers, from a list compiled in accordance with a process prescribed by national legislation;
-two persons selected, after consulting organised local government, from a list compiled in accordance with a process prescribed by national legislation.
An additional subclause would then be added to the clause to provide that "national legislation referred to in subclause (a) must provide for the participation of Premier and local government in the compilation of lists contemplated in subclauses (a) and (b)".
Adv de Lange then expressed concern for the use of the term ‘organised local government’ saying that he did not want to exclude anybody. Mr Dhlali (ANC) from the Portfolio Committee on Local Government said that organised local government was indeed the term to use. Organised local government would mean SALGA (the South African Local Government Association), a body which represented all the provinces. Mr Dhlali explained that SALGA was by its intrinsic nature the representative of all Local Government. If one needed to consult with local government, this could be done once off through SALGA. It would therefore not be too hard or impractical to consult with all of local government nor would it exclude anyone.
Ms S M Camerer (NNP) then asked if it would be possible for there to be three provincial representatives rather than just two. She argued that the numbers in the FFC were being reduced drastically. There were nine provincial representatives at present and if this were reduced to just three then that would still be a substantial reduction.
Mr Khala said that the Department of Finance would have no problem with such a provision.
Adv de Lange then agreed that the number of provincial representatives on the FFC could be upped to three with the local government representatives staying at two. He noted that with three provincial representatives there would be a total of nine people on the FFC. This would be a drastic reduction from the 22 that were presently on the FFC.
The meeting was adjourned.