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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
22 October 2001
JUDICIAL OFFICERS AMENDMENT BILL; CRIMINAL PROCEDURE SECOND AMENDMENT BILL: DELIBERATIONS
Chairperson: Adv J H de Lange
Documents Handed Out:
Judicial Officers Amendment Bill [Draft] (available 26 October)
Criminal Procedure Second Amendment Bill [Working Document Draft 1]
The consideration of the Judicial Officers Amendment Bill was mainly technical. The Committee considered the Bill’s inclusion of Constitutional Court judges. When examining the remuneration received by judges, Adv de Lange thought it was time to rethink the view that judges were under-paid. He felt that they received more than adequate remuneration and benefits. Adv de Lange was displeased with the fact that under certain circumstances judges would receive two salary cheques.
Discussion on the Criminal Procedure Second Amendment Bill concerned the new plea and sentence bargaining provisions. It was stressed that sentence bargaining provisions would only apply to the legally represented accused.
Judicial Officers Amendment Bill
The Committee resumed discussion of the Judicial Officers Amendment Bill at Clause 7 of the Bill. Clause 7(1)(a)(i) meant a judge would have to be available if he was needed. It effectively meant that a judge had to oblige once he was asked to perform such a service. Adv de Lange felt the principle was sound and not in need of change. Judges paid no contributions towards their pensions, but then received an amount equal to their full salaries even after their retirement. The logic behind this, and the provision which allowed the judge to be called back, was the ‘once a judge, always a judge’ principle.
Adv de Lange thought this principle acceptable because judges were paid for this additional work, which meant that they would receive two cheques at the end of the month in which they had worked. Realising the position, Adv de Lange told the Committee that perhaps it was time to reconsider the view that judges were not adequately remunerated.
Ms Magazi (ANC) asked what the term ‘service’ meant and whether it would entail full time work. She asked this because calling on old judges to perform these duties meant that they were preventing the appointment of younger judges who need the experience.
Adv de Lange conceded that this practice would indeed prevent the appointment of other judges. This would however only happen in terms of clause 7(1)(a)(ii), where the Chief Justice and President of the Supreme Court of Appeal felt they needed the expertise and experience of a retired judge.
Ms Magazi was not convinced and said younger judges would then be prevented from acquiring the level of experience possessed by the older judges.
Adv de Lange agreed again but said that experience had shown that this mechanism was only used where there was a severe lack of judges. Despite this his biggest problem with the principle was that these judges who were called back would receive two cheques. What illustrated Ms Magazi’s point even more was that younger judges, still engaged in active service would cost the State only one salary cheque while retired judges would cost two.
Mr G Magwanishe (ANC) asked for clarity on the ‘three months’ provision in Clause 7(1)(a)(i).
Adv de Lange explained that the provision did not say which three months of the year. What the clause effectively meant was that judges could not take up another position.
Adv M Masutha (ANC) asked whether judges who were still in active duty were paid extra when they sat on a commission of inquiry or something else of that nature.
Adv de Lange said they received no extra remuneration as they were judges in active service. Performing such a duty was what they were already being paid for.
Ms Magazi pointed out that when a judge was initially appointed, this happened through a political process. The Judicial Services Commission (JSC) had a say and the final appointment was made by the President. Now, with this provision it meant that a judge would be appointing another judge. She conceded that there was a need to consult with the Minister, but added that the clause said ‘after consultation’. This would mean that they needed to consult with him, but once they had, the decision was ultimately their own.
Adv de Lange was pleased that Ms Magazi had picked this up and said he was shocked it had not been picked up before. This was a serious problem and Adv de Lange asked why the section had been drafted to provide that the re-appointments would happen ‘after consultation’ when it clearly should have been ‘in consultation’ with the Minister. Adv de Lange was concerned because the provision effectively allowed one judge to appoint another. What concerned him even more was the fact that after this had been done, the re-appointed judge would receive two salary cheques instead of one.
A Committee member suggested that perhaps this provision was in place to provide for the independence of the judiciary. Adv de Lange however felt that this could not correctly be so. He told the Committee that nowhere in the world were judges allowed to appoint other judges. Adv de Lange then turned to Mr Basset, a drafter from the Department of Justice asking who had drafted this section and how long it had been in place. Mr Basset could not recall the name of the drafter but told the Committee that the section as it stood had been in place since 1989.
Adv de Lange submitted that the clause should properly provide for the Minister to make the re-appointments after consultation with the Chief Justice and President of the Supreme Court of Appeal, upon a request from either of those parties.
Adv de Lange then told the Committee that he was totally opposed to judges receiving two salary cheques. Not wanting to be misunderstood, Adv de Lange explained that he had no problem with the pension arrangement that judges enjoyed. Namely that they did not contribute towards their pensions yet received a full pension upon retirement. He further added that he had no problem with the gratuities and other remuneration that judges received. This was because judges served a valuable service and worked hard. It was also necessary to attract the best legal minds and make it worth their while to become a judge. Despite this however, Adv de Lange had a problem with the arrangement.
Clause 7(1), 7(2) and 7(3)
Adv de Lange then directed his attention to Clause 7(1) saying that it was badly drafted. Nowhere did it say who would make the actual appointment and at most provided who could make the request. It would thus be necessary to reword the clause. Adv de Lange suggested that the JSC be responsible for the appointment. Mr Basset reminded that the JSC only met twice a year and asked whether this would not cause practical problems.
Adv de Lange admitted that this fact might cause problems but told Mr Basset that matters such as this could be done via correspondence. Also if it was known that a certain judge would be required to stay on the bench longer, the application could be made in advance.
Adv de Lange moved on to Clause 7(2), pointing out that there was a problem here too. This clause started by defining what the term ‘service’. The problem was that there was a definition of service in the definition clause too. What therefore needed to be done was to place this provision in the definition clause.
Clause 7(3) provided for judges receiving double salaries. Adv de Lange told the Committee that despite dissatisfaction with this clause, there was nothing that could be done because the Constitution provided that judges remuneration could not be reduced. Although the Committee could not do anything about the principle whereby judges received two salary cheques, the Committee could still speak to the Minister and express their dissatisfaction with the practice where retired judges were re-appointed. The reappointment of a retired judge would mean that the appointment of younger judges and new judges; would be hindered. Existing judges would not be allowed or able to accumulate the experience that their retired colleagues are perceived to have and the service of these retired judges costs the State twice as much as it would cost the State to use a judge in active service.
Imam Solomon (ANC) asked whether it was possible for a judge to take up another position, such as an academic one. Adv de Lange said that this situation was governed by the Supreme Courts Act. In terms of the law a judge could take up any other position as long as this position did not interfere with his work as a judge, and he or she did not receive any remuneration for this position. If he did receive remuneration, or his second job affected his ability to fulfill his obligations as a judge, then that judge would have to get the permission of the Minister. Imam Solomon said that to provide otherwise would be to waist a vast pool of experience. Specifically in relation to academia, a realm where judges could make huge contributions to the next generation of legal minds.
The next clause for consideration was Clause 7A. Adv de Lange was of the opinion that the heading for this clause was clumsy and confusing. The heading for Clause 7A was "Performance of service as Chief Justice or Deputy Chief Justice by Chief Justice or Deputy Chief Justice or as President or Deputy President of Supreme Court of Appeal by President or Deputy President of Supreme Court of Appeal discharged from active service."
Mr Basset explained that this clause was to protect those judges who had been discharged from active service, from the change in the offices in the judicial system. This would mean that judges who served as the Chief Justice in the Supreme Court of Appeal would not be negatively affected by the change in that office, which was set to become the President of the Supreme Court of Appeal.
Adv de Lange felt that the whole Act was badly drafted and added that when the rationalisation process began it would be necessary to redraft the whole Act. He added that the Act as it stood had been tailored around the old days when judges were appointed from the ranks of senior advocates. The result was that judges were appointed at relatively advanced ages. Today this created anomalies as more often, judges were being appointed at younger ages.
Adv de Lange asked why Clause 8(2) was needed in light of Clause 8(1)(a) and submitted that Clause 8(2) could be removed. Mr Basset agreed.
Ms Magazi then pointed out that the provisions of the clause forced a judge to get married. This was because the clause provided for the surviving ‘spouse’.
Adv de Lange agreed but reminded that the issue of partners had been set down for discussion in January of 2002. This discussion would concern the provision for partnerships, whether they be same sex, heterosexual or any other form of partnership which has not been dealt with or discussed.
Clause 10 deals with the resignation of certain Constitutional Court judges and judges from office. This clause provides for arrangement when a judge retires early. Clause 10(2) provides that a judge after retiring receives a salary in accordance with section 5, but subject to the fact that subsection (2) of that section will not apply. Section 5(2) is the so-called inflation beater that adjusts the judge’s salary so that it grows as to keep up with inflation. Judges who retire early in terms of section 10 do not receive this inflation beating benefit.
Mr Basset also noted that if judges retired in terms of section 10 then the principle ‘once a judge, always a judge’ does not apply.
The whole of Chapter 3 was deleted as the provision contained therein had been reproduced elsewhere in the Bill.
The Bill called for the removal of subsection (2). Adv de Lange told the Committee that they would have to look into the matter to see if the section was not needed. He submitted that it looked as if it was needed. Mr Basset told the Committee that this section had never been used. Therefore it was being taken out. Subsection (3) was also being removed, as it was dependent on subsection (2).
Mr Basset then told the Committee that Section 15(4) was still under discussion within the Department. This section referred to a number of judges who retired some time ago. There were however several of these judges or/and their spouses who were still alive and would thus be eligible for the remuneration that would be payable in terms of this section. The Department was still debating as to whether the provision should be included or not.
Adv de Lange said if this was the issue, if passed the cost to the State would be R 20 million. Mr Basset said that if the provision were included in the Bill it would cost the State R 4 million. Adv de Lange told the Committee that they would not discuss a provision such as this until it was clear that the Department of Justice wanted the section to be included. In fact the Department of Justice was responsible for more over-expenditure than any other Department. He would thus not add another R 4 million this over-expenditure until the matter was settled within the Department.
Clause 18 dealt with the application of the Judges’ Remuneration and Condition of Employment Act and the repeal of certain laws. Adv de Lange explained that this section was a rationalisation section. When certain matters were rationalised others were left out of this process. This included certain judges and masters’ offices. This clause now provided that the Judges’ Remuneration Act applied nationally. It also repealed the equivalent laws in the former Homelands.
Mr Basset explained that certain areas were still being investigated, and the Department was trying to establish what the position was in the Ciskei and Venda. He explained these States had their own legislation but never appointed judges in terms of that legislation, instead judges in those areas served were seconded there.
Adv de Lange told Mr Basset that despite this situation the laws of the former Homelands would have to be repealed.
Adv Masutha interjected and told the Committee that this would be hard to do because most of the former Homelands had actually lost most of their legislation. Adv Masutha meant that these places physically lost the statutes as well as the records of what statutes had existed. This was the experience he had had when repealing laws relating to the former Homelands. Adv Masutha said that as they repealed laws, "more popped up".
On a request by Adv de Lange, Mr Basset explained that section 19(1) was a redeeming provision that would apply to the Homelands.
Criminal Procedure Second Amendment Bill
This discussion concerned the Criminal Procedure Second Amendment Bill dealing with the new plea and sentence bargaining provisions. The point stressed most often in the meeting was that sentence bargaining provision s would only apply to the legally represented accused.
Mr Labuschagne prepared a document that contained a number of options for clauses, where there were indeed options. The Committee then considered the options and adopted those options which the felt to be the best.
The first option on page two of the draft Bill was adopted. This was because as the Bill presently stood, it read "subject to the directives". This provision had the effect of making the entire Bill or Act subject to the directives. This would in turn mean that Bill could be manipulated or changed through the directives. This position would be untenable and is thus remedied by adopting the suggested option.
Adv de Lange noted that it should be remembered that, as made clear in that preferred option, the provision could apply only to a legally represented accused. The preferred option also made it clear that not all prosecutors could bargain but only those specifically authorised to do so. The reason for such strict requirements was the fact that the area was open to abuse.
Imam Solomon asked what would happen in the case of a number of accused. Surely the one accused entering a sentence agreement would have a negative effect on the cases of the other accused. Adv de Lange said no special arrangements were made in this respect. If the other accused individuals plead not guilty then their trial goes on as usual. What often happens in practice is that the accused entering a sentence agreement subsequently testifies against the other accused individuals, using this as a bargaining tool to get a more favourable sentence.
Mr Magwanishe stressed that the provisions applied only to those who had legal representation. He submitted that provision be made for people who have waived their right to legal representation.
Adv de Lange thought that this could not be done for the same reasons that legal representation was required in the first place. Namely, that the opportunity for abuse was too great. Police could convince people to waive their right to legal representation when they really should not, just as easily as they could get them to enter a sentence agreement in the first place.
Next was the suggested option for Section 105A (1)(a)(ii). This submission was made by Dr de Oliviera from the National Director of Public Prosecutors. The section as it stood provided that an appropriate sentence be imposed. Dr de Oliviera felt that the term ‘appropriate’ was too broad and allowed for too much subjectivity. He felt that instead the section should provide for a ‘just’ sentence, inline with the case of S v Malgas. This new formulation would leave less scope for subjectivity and instead provide for a more objective criteria.
The suggested option was adopted.
The next option up for consideration was option 1 on page 3 of the document. This option would see the substitution of subclause (b) of Section 105A (1)(b) and the addition of a new subclause (c).
The first change in this option was the substitution of the phrase "police official" with the word "person". This change was based on a submission which reminded that on occasion it might be the police that is being investigated. In these circumstances you would not be consulting with a police official but an official from another law enforcement agency.
Subsection (cc) was added as a result of the concern that previous convictions of the accused should be considered.
Subsection (iii) in the option resolved a number of problems raised in the Committee. The first was the replacement of "if circumstances permit" with the phrase "if it is reasonable to do so". This was done to make the requirement more objective. Subsection (bb) of that section then remedied Dr de Oliviera’s concern that the previous section only made provision for section 300 when there were forms of compensation other than those in section 300.
Paragraph (c) in that section then allowed that the requirement in (b)(i) may be dispensed with if that investigating police officer cannot be reached without unreasonable delay. This was done so as not to make that subsection an absolute requirement.
The meeting was adjourned.
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