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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
25 October 2001
JUDGES REMUNERATION AND CONDITIONS OF EMPLOYMENT DRAFT BILL: DELIBERATIONS
Documents Handed Out:
Judge’s Remuneration and Conditions of Employment Draft Bill [as adapted after the meeting of the Committee on the 24 of October 2001]
The Committee continued its consideration of the Judge’s Remuneration and Conditions of Employment Bill. By the close of the meeting all but a few clauses had been dealt with. Those that were not resolved were still being discussed within the Department of Justice.
Adv de Lange said he had a great many concerns relating to this clause. His first related to the definition of service in this section. He pointed out that after the previous day’s meeting, subclause (2) had been removed from clause 7 and placed in the definitions clause. There in the definitions section ‘service’ had been defined as applying only to clause 7. Adv de Lange said that this limitation on the definition could be removed. The consequences of such a change would however need to be investigated by Mr Basset, the Department of Justice drafter.
Adv de Lange noted that the next subclause would give judges the double-pay that they would receive in certain circumstances. Casting the principle of this matter aside, Adv de Lange pointed out that the money payable under this clause did not fall under either of the two definitions of salary that were contained in the Bill, namely those in clauses 2 and 5. He suggested that for this reason it might be better to use the word remuneration instead of salary. Adv de Lange added that he was considering inserting clause 7(3) under clause 8, making it clause 8(2).
Examining subclause (3) Adv de Lange said that perhaps the amount payable to judges in terms of this subclause could be determined by the President. Adv de Lange mentioned how judges received full pensions, received benefits and a tax free gratuity upon retiring. In light of this he could see no reason why judges should get two salary cheques, both being of equal size. Pondering the constitutionality of such a change to the legislation, Adv de Lange said that nobody was ‘entitled’ to what judges received in that clause. He added further that this was an amount payable, and this amount did not necessarily have to stay the same. Here Adv de Lange was debating the constitutionality of the reduction of an amount payable, rather that the complete removal of that right. This was an important point in light of the fact that the Constitution dictated that judges remuneration could not be reduced.
Ms S Camerer (NNP) was of the opinion that these judges should not be made to work for anything less than what they presently received. She told the Committee that when these judges were asked to serve again, it was surely not the intention of the State to feel that they were getting cheap labour. She reminded that these individuals were distinguished judges who would have all but retired. To call them back would mean that they were lending their expertise, wisdom and experience to the State.
Adv de Lange’s counter-argument was that these judges were for all intents and purposes still receiving a full salary. Here Adv de Lange was referring to the judges’ pension, which consisted of a full salary for which the judge would not have made a single contribution throughout his stay on the bench. Adv de Lange argued that in certain instances the judges were asked to work again and their consent was required. If they did not like the offer then they could refuse.
Ms Camerer however pointed out there were also those provisions which said judges had to be available to work for three months a year. The judge would then not be able to refuse to work for those three months.
Adv de Lange felt that Mrs Camerer had made a valid point. For this reason he said that where judges worked their compulsory three months, they would receive an amount in terms of clause 7(3). However, after these three months, or where a judges consent is required, then the amount payable, would be determined by the President.
Ms Camerer was satisfied with the new position saying that if judges were obliged to serve then they should not be subject to an amount determined by the President.
Adv de Lange said he agreed that this would have to be the manner in which the subject would be dealt with. He however added that the remuneration which they would receive in terms of clause 7(3) should be an amount equal to the amount which at that time is payable to the holder of the office which he or she holds for that period and not an mount equal to that received by officers in the office they held prior to discharge. Adv de Lange said by no means should they receive the greater of these two amounts, there was no justification for this.
What was previously numbered clause 7A had now been numbered clause 8. The new clause 8 was inserted to provide that where the Chief Justice stayed on, those additional years which he served on the bench would count towards his name and would thus be taken into account when calculating benefits. Adv de Lange referred to this clause as embodying the Corbett principle, as this clause was supposedly intended to provide that Judge Corbett could stay on.
Adv de Lange then added that many people had thought that clause 8 would be that clause under which Justice Chaskalson would stay on. This was however not true because clauses 4(2) and (3) would operate in order to keep Justice Chaskalson on the Constitutional Court Bench until he attained the age of 75.
The one person who was appointed in terms of clause 8 was Judge Corbett. Adv de Lange said it should be noted that although in terms of the section, Judge Corbett was entitled to two salary cheques, he asked only for one and refused the other.
Clause 16: Transitional Arrangements
Looking at clause 16(1) Adv de Lange said that the former Homelands were no longer in existence and therefore there could be no service in relation to them. Mr Basset explained that this clause attempted to provide for instances where South African judges were seconded to Homelands where they served in terms of that Homeland’s legislation. What the clause provides is that the period of time which judges spent there would count towards their term of service. The example which Mr Basset gave was of judge Hendler, who served first in South West and was then seconded to Bophuthatswana. Judge Hendler had subsequently requested that the five years he spent on the bench in South West be added to his entire term of service. Mr Basset told the Committee that the matter had been discussed in Cabinet the previous day and had been approved because the five years were served prior to the South West’s independence.
Adv de Lange agreed saying that this arrangement was fine, especially in light of the fact that South Africa was trying to keep all its judges under its wings.
Adv de Lange then directed the Committee’s attention to the Schedule which contained those laws to be repealed by the Bill. The schedule repealed the applicable laws in all the former Homelands except Ciskei and Venda. He pointed out that this was the position because Mr Basset had been unable to find out whether there indeed was corresponding legislation in those former states. Mr Basset interjected saying that he had recently located the Venda equivalent of the Bill and would be including it in the next draft, to be handed out to the Committee the following day.
The meeting was adjourned.
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