Criminal Procedure Second Amendment Bill; Judges Remuneration & Conditions of Employment Draft Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
24 October 2001
CRIMINAL PROCEDURE SECOND AMENDMENT BILL

Chairperson: Adv J H de Lange

Documents:
Working draft of Criminal Procedure Second Amendment Bill [B45-2001]
Judges Remuneration and Conditions of Employment Bill [B - 2001]

SUMMARY
The placing of the proposed section 105A of the Criminal Procedure Act was discussed. The "reasonable[ness]" test in clause 2(1)(b) was discussed, and the word "and" was inserted to create a two-tier test. The effect of clause 2(1)(b)(ii) was considered as far as its ability to bind the State is concerned. The term "legal representative" in clause 2(1)(c) was amended. Reference to "the complainant" in clause 2(2) was removed, and the legal effect of the section 300 compensation order was discussed. Clauses 2(3) to (9) were accepted by the committee. The phrase "subsequent negotiations and discussions" was added to clause 2(10). Clause 2(11) was amended to require the prosecution "to keep detailed records of all the aspects of the implementation of this Bill, which must then be tabled in Parliament at least once a year".

The definition section of the Judges Remuneration and Conditions of Employment Bill was discussed briefly, and the proposed definitions of "active service", "judge" and "salary" were considered.

MINUTES
Criminal Procedure Second Amendment Bill
Clause 1
The Chair noted that the formulation of this clause is approved.

Clause 2
Subsection 1(a)
Mr Labuschagne (Department of Justice) informed the Committee that the Chief State Law Advisor, Mr E Daniels, had decided that section 105A should be inserted in the Criminal Procedure Act (the principal Act). [The new section 105A was the much debated plea and sentence bargaining provision. This section would provide that certain duly authorised prosecutors could enter into negotiations with accused individuals and bargain on their sentence. The mechanism is intended to free up court time and will also only be entered into by accused who are legally represented.]

The Chair asked why section 105A was opted for.

Mr Labuschagne replied that he personally supported the South African Law Commission (SALC) recommendation that the new "plea and sentence agreements" provision, embodied in clause 105A, be included in section 111 of the principal Act. The reason for this is that sections 112 and 113 of the principal Act deal with pleas of guilty and not guilty respectively, and thus the amendment should be placed directly before these sections in the principal Act. Yet, despite this recommendation, Mr Daniels decided unilaterally to insert the proposed section 105A.

The Chair suggested that perhaps section 104 or 106 of the principal Act would be a better solution, and called on Mr Labuschagne to remind the Committee of the contents of these sections.

Mr Labuschagne replied that the substance of section 104 had temporarily slipped his mind, but did inform the committee that section 106 of the principal Act deals with the different types of pleas that could be advanced by the accused.

The Chair proposed that the "plea and sentence agreements" provision would be better suited under section 111 of the principal Act, or even section 111A for that matter, so that this provision would directly precede the guilty plea in section 112. Thus the SALC recommendation is preferred here as it places the amendment logically before the guilty plea procedure.

Mr J Jeffery (ANC) supported the Chair’s suggestion.

Mr Labuschagne stated that it would be relatively easy to alter one section in the principal Act, and will inform members of the contents of sections 104 and 106 at this committee’s next session.

The Chair acknowledged Mr Labuschagne’s proposal and postponed any further discussion of the matter to the next session.

The Chair noted that it is vitally important here that "plea and sentence agreements" (PSA) can only be effectively concluded by the accused who is legally represented, and that such agreements be reduced to writing.

Mr Jeffery then suggested that the problem with the current formulation of this clause is that the accused who has committed a minor offence and who does not qualify for Legal Aid will not be able to enter into a plea bargaining agreement.

The Chair replied that it is evident from the Constitution that anyone who suffers a "substantial injustice", which has been interpreted to mean at the threat of possible imprisonment or a fine, has the right to legal representation. If in fact, as Mr Jeffery has suggested, an unrepresented accused is prevented from concluding a plea bargain agreement and is indeed convicted, the decision by the court could be overturn on constitutional grounds. The fact of the matter is that even if the accused does not benefit from Legal Aid, the prosecution cannot secure the conviction if the accused is without legal representation. Furthermore, the crimes dealt with here are minor offences, and the evidence that will be adduced during the trial will not "clog up the courts".

Mr S Swart (ACDP) inquired whether informal plea bargaining is covered by the amendments.

The Chair replied that these agreements would not be affected by the Bill in any way.

Imam G Solomon (ANC) questioned whether these informal agreements are not now being formalised by the Amendment Bill.

The Chair responded that the Bill would not affect the process, as the aim of this provision is to bind a magistrate to a particular set of facts.

The Chair noted that the phrase "just sentence" replaced "an appropriate sentence", as the test for the former is narrower. He consequently noted that the proposed section 105A(1)(a) is agreed to by this committee.

Subsection 1(b)
The Chair acknowledged the deletion of "the" in the proposed section 105A(1)(b)(ii), and stated that the remainder of this committee’s proposed amendments have been included in the provision.

Mr Jeffery then drew the committee’s attention to subsection 1(b)(iii). He reminded the Committee that the phrase, "if circumstances permit" had been changed to "if reasonable to do so. He now suggested that the test for conclusion of the agreement should be elevated to "reasonably possible".

The Chair replied that the insertion of "possible" connotes the lowest test in terms of the range in strictness from possible to probable, and if this were coupled with "reasonably" to form "reasonably possible" the test would be very low indeed. For this reason the proposed formulation of the test is not favoured, as in these early stages of this law the tests imposed cannot be too low. The test to be employed in subsection 1(b)(iii) is very important because the proposed section 105A(4) requires the magistrate to be satisfied that that section’s requirements have been met. Furthermore, the reasonableness test is well established in our law.

Mr Swart contended that it would be very easy for the magistrate to exonerate compliance with subsection 4 if the test in 1(b)(iii) is too high, and therefore the use of a "reasonably possible" test if preferred.

The Chair accepted the validity of these arguments but reminded members of the reality of the South African criminal justice system, and that what is needed is a balance to encourage involvement of the community by increasing the conviction rate and also to remove the backlog within the system. Furthermore, the magistrate cannot simply choose to ignore the agreement when no consultation has been made.

Mr Jeffery suggested that there is a very fine line between "reasonable" and "unreasonable" as guidelines for the magistrate and the prosecutor.

The Chair replied that it had to be determined what is "reasonable" in terms of the nature and circumstances of each particular case, the severity of the offence committed and the sentence to be handed down. The test thus has to be developed in a case-by-case basis, and this provision is aimed primarily at serious crimes.

The Chair informed members that the aim is not to create an absolute provision here, but that some leeway has to be allowed. Yet this provision cannot contain "completely open-ended standards" because this would allow free-reign to the magistrate and prosecutor. It should also be remembered that the prosecutors would have to act in accordance with the directives stipulated by the National Director of Public Prosecutions.

Ms F I Chohan-Kota (ANC) stated that subsection 1(b)(iii) embodies two separate tests: the "reasonable[ness]" test and the "nature… and circumstances [of] the offence and the interests of the complainant". Yet neither test relates to or explains the other, and it should thus be made clear that the two tests are independent. This would best be achieved by inserting the word "and" immediately after the comma to clearly show that it is a "two prong test", whereas the current formulation of the provision implies that the portion after the comma qualifies the reasonableness standard.

The Chair accepted this proposal and called for the provision to be amended accordingly. This amendment would make it a much stronger test.

Adv M Masutha (ANC) suggested that the entire provision is premised on the perception that the prosecution has a discretion in terms of entering into the agreement, and might even choose not to do so. The provision therefore alleviates the burden of the prosecution rather than assisting the accused, and this negates the very purpose of the Amendment Bill. Furthermore, this provision merely provides the guidelines for the prosecution regarding the procedure to be followed, and does not provide any substantive grounds on which the accused could challenge the decision taken by the prosecution.

The Chair disagreed with Adv Masutha’s contention and suggested instead that the provision imposes a stricter burden on the state, and that added costs and time would be expended in having to track down the accused. Furthermore, if the magistrate is not satisfied under the proposed subsection 4, the investing officer could very well be ordered to go back and try to reach the accused. It is thus evident that this provision does not unjustly advantage the prosecution as contended by Adv Masutha, but seems to assist the accused in ensuring that every necessary step has been completed.

Advocate Masutha then acknowledged that the aim of the provision is not necessarily to assist the accused, but rather to alleviate any unnecessary delay or complications with cooperation from the accused that the prosecution might experience. The purpose of the provision is, therefore, to relieve the backlog and attempts to expedite matters.

The Chair agreed with Adv Masutha and stated further that the objective of the Amendment Bill is to deal with the "congested court rolls" and attempts to secure a (lawful) conviction and sentence. Thus the formalities imposed cannot be too strict or they would not be capable of effective enforcement.

Mr Jeffery suggested that the underlined and writing in bold at the beginning of subsection 1(b)(iii) be placed at the end of the provision.

The Chair responded that this would not be possible as it would effectively create a closed list, which would inevitably result in very few (if any) agreements being concluded. The formulation proposed by Mr Jeffery would make the agreement the decisive factor in terms of whether the agreement should be entered into or not. This would afford a perfect opportunity to those magistrates who are not particularly fond of plea bargaining agreements to completely ignore the agreement without even considering its content.

The Chair then noticed a contradiction in the proposed subsection 1(b) as the beginning of the subsection states that the agreement "may" be entered into which implies that no agreement yet exists, yet subsection 1(b)(iii)(aa) suggests that such agreement must already exist which forms the focal point of the matter. The inclusion of "only" at the beginning of subsection 1(b) is problematic.

Adv Masutha suggested that the word "proposed" be inserted immediately before "contents" in subsection 1(b)(iii).

The Chair agreed with this amendment.

Mr Labuschagne then inquired as to the situation where the accused only indicates that s/he is willing to enter into the agreement but nothing has been reduced to writing. Does the prosecution have to wait until the agreement has been put down on paper to proceed with the case? Furthermore, the insertion of "proposed" still suggests a prior written agreement, which will not always be the case in practice.

Adv Masutha then suggested in response to Mr Labuschagne’s concerns that the word "contents" in subsection 1(b)(iii)(aa) be replaced by "substance", so that the requirement that the agreement be reduced to writing is steered clear of.

The Chair contended that a further problem lies with the absence of a minimum sentence provision here, and suggested that subsection 1(b)(ii)(ee) be inserted to provide "any offence in the Criminal Procedure Act".

Ms Chohan-Kota stated that the aim here is to create the situation in which the prosecution enters into a plea-bargaining agreement to secure a conviction and sentence shorter than the minimum sentence prescribed. The purpose is to secure a lawful conviction as expediently as possible.

The Chair reminded Ms Chohan-Kota that the magistrate and prosecution are not bound by the factors listed in subsection 1(b)(ii) and are only required to give "due regard to" them, which is the most stringent burden this law can impose on them.

Ms Chohan-Kota disagreed and replied that the prosecution does not have the necessary authority to decide whether any special circumstances exist and can therefore agree to a lesser sentence than prescribed, if it so chooses. It must therefore be confined to these limits.

The Chair failed to agree and reiterated that these officials are not bound by the factors, nor has a sentencing regime yet been established to deal with this issue. Furthermore, the court can ultimately decide to impose a shorter sentence, or it can also decide to increase the sentence.

Ms Chohan-Kota insisted that is the thresholds were not enforced the prosecution would be able to do exactly as it pleases, to the detriment of the accused.

The Chair maintained that the proposed section 105A(11)(b)(i) imposes mandatory directives on prosecutors, and these set certain checks and balances in place to ensure that any abuse of process is avoided. It would be advisable to include these directives here in subsection 1(b)(ii).

Mr Labuschagne reminded the Chair that these are sufficiently covered in subsection 11, and are therefore not needed here.

The Chair disagreed and suggested that subsection 11 merely prescribes the formulation of the directives, but does not provide that "due regard" must be had to them.

The Chair called for subsection 1(b)(ii) to be amended to read "due regard to, at least, the", so that the considerations in the directives may be accommodated.

Mr Jeffery contended that the phrase "any directive so issued shall be observed in the application of this section" in subsection 11(a) implies that it applies to the entire section 105A. Consequently, if this phrase were inserted in subsection 1(b)(ii), it would only apply to that section, and therefore the preferred option is the catch-all provision in subsection 11(a).

The Chair responded that the problem here is that the only sanction for any failure to abide by the directives imposed in subsection 11 is the "disciplinary steps" in subsection 11(b)(iii).

Subsection 1(c)
The Chair noted that "legal advisor" in the proposed section 105A(2)(c)(i) of the principal Act has been replaced with "legal representative". Mr Labuschagne was called upon to explain the deletion of "the State" and the incorporation of "his or her representative" in the same provision.

Mr Labuschagne replied that the reference to "the State" was removed because at the beginning of subclause 2(c)(i) reference is already made to "the prosecution" who represents "the State", and the inclusion of the latter amount to redundancy. Furthermore, "legal representative" does not refer to a legal representative, but rather to anyone who represents the best interests of the accused.

The Chair suggested that perhaps a definition of "representative" would be necessary here, so as to avoid any confusion with "legal representative".

Mr Labuschagne replied that this definition is not necessary as whenever the legislature has intended to refer to a legal representative, the relevant provision has stated so expressly. It is therefore clear that in this provision and in this context a legal representative is not being referred to.

Mr Swart inquired of the SLA whether this provision covers instances in which the police are in fact the complainant, for example, where the victim is not comfortable in the situation.

Mr Labuschagne responded that the representative of the complainant is usually also the investigating officer, but the latter would not be consulted as the complainant as such. Therefore the police complainant would not fit in under "representative" in subsection 1(c)(i).

Mr Jeffery stated that the reference to "investigating officer" in this subsection seems to conflict with the use of "the person charged" in subsection 1(b)(i). Further clarity on the reason for the removal of "the State" in subsection 1(c) is required from Mr Labuschagne.

The Chair explained Mr Labuschagne’s earlier reasoning behind the deletion of "the State", and acknowledged that there is a drafting error in subsection 1(c) and must be corrected.

Ms Chohan-Kota suggested that the proposed subsection 1(c)(ii) be used as the broad test that would involve a case-by-case evaluation of the circumstances to decide whether the consultation in subsection 1(c)(i) may be dispensed with, and subsequently remove 1(c)(i). Furthermore, the phrase "the accused or his or her legal representative" in subsection 1(c)(i) should be deleted.

The Chair agreed that the phrase mentioned should be deleted as the accused does not suffer a "substantial prejudice". Subsection 1(c)(i) must be retained as the "substantial prejudice" test, as this is a higher test than the test employed in subsection 1(c)(ii) regarding the "administration of justice". Furthermore, "or" should be replaced with "and" to indicate clearly that the two tests are distinct and separate.

Mr Jeffery agreed that "and" should be included as the "substantial prejudice" test in subsection 1(c)(i) would by itself be "too light".

The Chair agreed with these proposals, and called for "or" to be replaced with "and".

Mr Swart questioned the reasoning behind the inclusion of "and" in subsection 1(b), whereas subsection 1(c)(i) states "or".

The Chair replied that subsection 1(b) refers to the conclusion of the agreement which is vital to this provision, and therefore all those requirements have to be met, whereas
subsection 1(c) refers to the investigating officer which is "not always fatal" to the case of the accused.

The Chair then called for these amendments to be effected.

Subsection 2
Ms Chohan-Kota suggested that the inclusion of the complainant in subsection 2(c)(ii) completely unnecessary, as the agreement concluded under this section is between the accused and the state alone in terms of which the accused is obligated to perform.

The Chair agreed whole-heartedly with this proposal, and stated further that the current provision creates problems where, for instance, the complainant disagrees with compensation determined by the court. Surely the focus here should be on the consultation and no the signing.

Mr Swart reminded members that a section 300 order has the same effect as a civil judgment, but this provision deals with an agreement between the parties concerned.

The Chair stated that in this instance the magistrate has to exercise his/her discretion and the complainant cannot "veto" the decision made. Confusion is thus created regarding the legal effect of the agreement should the complainant decide not to sign the agreement, or decide to sign the document but then disagree with its contents. Therefore the reference to "complainant" in subsection 2(c)(ii) has to be removed.

Ms Chohan-Kota informed the Chair that if a section 300 order has the same legal effect as a civil judgment, then should the complainant refuse to sign or disagree with the contents as suggested above, s/he would be held in contempt of court.

Mr Labuschagne replied that this provision and the highlighted concerns would be considered. A further problem arises when the court imposes the sentence agreed to, and the compensation order then forms part of this court order. Perhaps it would be prudent to insert a separate clause detailing the precise legal effect of the civil judgment.

Ms Chohan-Kota contended that the section 300 procedure is rather cumbersome, but it does include summary orders for compensation. There are thus two separate possibilities here: either the section 300 order deals merely with compensation, as in the current formulation of subsection 1(b)(iii)(bb), or provision is made for summary compensation at the end of (bb) which would then afford the court at least some assurance that a benefit will be given. If these two considerations are collapsed the section 300 procedure would still be cumbersome, and a summons would still have to be issued to secure the compensation.

Mr Swart added that specific performance could still be demanded under a section 300 compensation order.

The Chair replied that the reference to the complainant in the proposed subsection 2(c)(ii) has to be removed from the Bill. Furthermore, the phrase "the sentence agreed to, including conditions relating to a compensation order" must be inserted at the ends of subsections 7 and 8, as well as a provision stating that the effect of this compensation order has the same binding legal effect as a civil judgment.

Mr Labuschagne inquired whether it should be included that the magistrate has to satisfy him-/herself that the compensation amount agreed upon is just.

The Chair answered in the affirmative.

Subsections 3 to 5
The Chair noted that the committee raised no objections to these subsections.

Subsection 6
The Chair noted that Mr Labuschagne insisted on retaining the reference to "the court" in subsections 6(b)(i) and (iii), even though the previous line already contains a reference to the court.

Mr Labuschagne maintained that the current formulation reads better.

The Chair called for "the court" in subsections 6(b)(ii) and (iii) to be replaced with "it", and noted that a new subsection (c) has now been inserted. Mr Labuschagne is requested to explain the reasoning behind the deletion of "in such event" at the beginning of subsection 6(c).

Mr Labuschagne replied that the phrase "if the court has recorded a plea of not guilty"" is preferred because "in such event" does not clearly indicate which event is being referred to.

The Chair responded by stating that the previous wording of the provision is the preferred formulation.

Mr M Mzizi (IFP) then stated that section 105A(4) of the Bill entails the conducting of an inquiry into whether the accused has concluded a plea bargaining agreement, yet section 105A(6) requires a second inquiry to be done. Surely this duplication is unnecessary and causes unwanted delays.

The Chair replied that there is no duplication involved as subsection 4 deals with an inquiry into the formal requirements of the agreement, whereas subsection 6 deals with an inquiry into the substantive of the offence in terms of the facts and the substantive elements of the crime.

Mr Mzizi then requested clarity on the inclusion of the phrase "open court" in subsection 6(a).

The Chair responded by calling on this phrase to be removed, as the principal Act stipulates that a court of law is always "open".

Subsection 7
The Chair called for a provision to be inserted in subsection 7 requiring the magistrate to have "due regard to the Acts that prescribe minimum or compulsory sentences here".

Subsection 8
The Chair proposed that a comma, followed by the rather lengthy phrase "including a condition relating to compensation or the rendering to the complainant of some specific benefit or service in lieu of compensation for damage or pecuniary loss" be placed at the end of subsection 8(a)(iii).

Ms Chohan-Kota contended that the word "including" still implies that the compensation order is not part of the sentence.

The Chair requested Ms Chohan-Kota to bear the enactment of future sentencing provisions in mind, as well as the sentences agreed upon in future plea bargaining agreements. This formulation ensures that the conditions are part of the sentence handed down.

Mr Labuschagne accordingly suggested that the phrase "and make the conditions an order of court" be inserted at the end of subsection 8(a)(iii) instead.

The Chair agreed with this proposal and called on Mr Labuschagne to word this provision in accordance with the corresponding sentencing provisions in the principal Act so that the same effect is achieved in both. The conditions may even need to be included in subsection 8(b) as well.

Subsection 9
The Chair approved of the amended provision.

Mrs S M Camerer (NNP) suggested that the phrase "proceed with the proceedings" in subsection 9(b)(a)(i) is awkward.

Mr Labuschagne then proposed that the word "continue" replace "proceed".

The Chair agreed with this proposal.

Subsection 10
The Chair noted that the portion of subsection 10(a) following the comma has been added. The phrase "up to the stage at which the court recorded the plea of not guilty" is not preferred and should be replaced by "or the recording of the proceedings".

Mr Labuschagne informed the Chair that such a provision has already been drafted. One of the reasons for including the phrase "up to the stage…" in subsection 10(a) is that it is the exact wording of the corresponding section 113 of the principal Act that deals with pleas of not guilty. The other is that admissions cannot be made in the record, but only during the proceedings of the court.

The Chair accepted Mr Labuschagne’s explanation. Furthermore, the phrase "subsequent negotiations and discussions" should be inserted after "the agreement" at the beginning if subsection 10(a), as the current formulation of the provision implies that only the written form will be declared null and void. However this proposed amendment now makes it possible for the person who negotiated with the accused to be called as a state witness. Mr Labuschagne is requested to clarify this issue.

The Chair noted that the committee agreed to the revised subsection 10.

Subsection 11
Ms Camerer asked why the detailed reference to the National Director of Public Prosecutions (NDPP) is included at the beginning of subsection 11(a), and also questioned the reason for the inclusion of the lengthy list of directives in this subsection.

The Chair replied that the detailed reference to the NDPP is necessary because this provision in the Criminal Procedure Act is referring to a person appointed and authorized by another Act. This is standard practice as far as the drafting of legislation is concerned.

Mr Labuschagne further informed Mrs Camerer that it is customary for the full title of the office of the official concerned to be spelt out, especially if this authority is derived from a separate Act.

The Chair then suggested that in subsection 11(b) a provision should be added requiring the prosecution "to keep detailed records of all the aspects of the implementation of this Bill, which must then be tabled in Parliament at least once a year".

Judges Remuneration and Conditions of Employment Bill
Clause 1
"active service"
The Chair noted that the phrase "the Judges Remuneration and Conditions of Employment Bill" has been replaced with "this Act" in the proposed part (b)(i) of this definition.

Mr L Basset, Department of Justice drafter, informed the Chair that if the alternate option Clause 7A of the Working Draft of the Bill is accepted, the reference to the short title of the Bill has to be retained in part (b)(i) of the definition.

The Chair called for "fixed date" in the proposed part (c) of this definition to be replaced with "commencement of this Act", because the previous Act had to stipulate a fixed date which is now cured by the commencement of this Act.

The Chair requested Mr Basset to clarify whether the proposed part (a) is properly covered by the new part (b)(ii) of this definition.

The Chair noted that, apart from the amendments highlighted, the remainder of the definition is satisfactory.

"Constitutional Court judge"
The Chair noted that this definition has now been inserted, and approved of its formulation.

"judge"
The Chair urged Mr Basset to ensure that the constitutional amendment is in force before this Act is passed, so that Justice Hefer and Judge President Chaskalson are covered by this provision. The reasons for the introduction of this Act should be explained in the resolutions, and it should also be made clear that this Act is drafted on the basis of the constitutional amendments relating to the tenure and remuneration of South African judges.

"revenue"
The Chair noted that the committee approved of this definition.

"salary"
The Chair questioned the incorporation of this definition because the term "salary" is employed by this Bill in two different ways. Firstly, the proposed part (a)(i) of the definition actually refers to monthly salary as contemplated in clause 2 of the Bill, which means the actual "pay" the judge would receive per month. Secondly, "salary" in part (a)(ii) means the "annual allowance" payable, as contemplated in clause 5 of the Bill. Thus part (a)(ii) should be deleted so that part (a)(i) refers to monthly salary, or "salary" proper, and clause 5 deals with the annual allowance. Furthermore, any reference to "annual" salary should be deleted and replaced by "monthly" salary.

The Chair then faltered and suggested that perhaps the reference to "annual salary" should be retained.

Ms Chohan-Kota replied that the acceptance of "monthly salary" would affect the formula prescribed in clause 5, and that "annual salary" should therefore be retained.

The Chair disagreed with Ms Chohan-Kota’s proposal and stated that it would not make any significant difference to the result of the calculation, as the monthly amount would then simply be multiplied by 12 to reach the annual amount payable.

The Chair then reconsidered and suggested that Ms Chohan-Kota’s view should be followed instead.

Ms Chohan-Kota then criticised the formula prescribed by clause 5 by using the example of a judge who holds the office of Chief Justice for just one brief spell in his entire judgeship. According to the formula he would then be paid an annual allowance according to the salary of the Chief Justice even though he never holds that office again, because clause 5(a) requires this amount to be calculated according to the "highest office held".

Mr Basset informed Ms Chohan-Kota that clause 5(a) does require the judge in question to hold the office "in a permanent capacity", and therefore her scenario would not occur in practice.

The Chair agreed with Mr Basset’s statement.

Ms L Mabe (ANC) then reiterated Ms Chohan-Kota’s concern, and requested clarity from Mr Basset on the precise reasoning behind the inclusion of "the highest office held".

The Chair replied that the incorporation of that term was decided upon, after much deliberation, by those who dealt with the issues before the Bill reached this committee. It is thus the factor to be used by this committee and in this Bill.

Ms Chohan-Kota suggested that the solution to this problem lies in the "C" component of the formula in clause 5 that deals with the period of active service.

The Chair agreed.

Ms Mabe stated that she understands the formula but does not agree with it, because of the concern raised earlier.

The Chair noted Ms Mabe’s contention, but informed the committee that the formula cannot be changed as the Constitution itself provides that Parliament cannot reduce their benefits.

The meeting was concluded.

Appendix 1:
The aggregate of the salary payable in terms of subsection (1) to a Constitutional Court judge or judge who was or is discharged from active service in terms of section 3 (1)(c) or (d) (or 3(3)(c))??? before he or she attains the age of 65 years, shall, subject to paragraph (d), be not more than 80 per cent of his or her highest salary during the period of his or her active service.