ATC130313: Report of the Portfolio Committee on Justice and Constitutional Development on the Notice on Remuneration of Magistrates, dated 13 March 2013

Report of the Portfolio Committee on Justice and Constitutional Development on the Notice on Remuneration of Magistrates, dated 13 March 2013

The Portfolio Committee on Justice and Constitutional Development, having considered the request for approval by Parliament of the Draft Notice and Schedule submitted in terms of section 12(3) of the Magistrates Act 90 of 1993, determining the rate at which salaries are payable to magistrates annually, with effect from 1 April 2012, tabled on 20 August 2012 and referred to it, recommends that the National Assembly, in terms of section 12(3) of the Magistrates Act 90 of 1993, approves the Notice.

The Committee reports further that:

1. A basic degree of financial security is important for judicial independence. But this raises the difficult question of who is to determine the remuneration of judges and magistrates: neither the Executive or Parliament, nor the judiciary itself, are the appropriate bodies. For this reason, an independent body – the Independent Commission for the Remuneration of Public-office Bearers – is tasked with making recommendations relating to the remuneration of judges and magistrates. Chaskalson CJ, in S and Others v Van Rooyen and Others (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC); 2002 (8) BCLR 210 (CC) states: ‘[139] Judicial officers ought not to be put in a position of having to do this, or to engage in negotiations with the executive over their salaries. They are judicial officers, not employees, and cannot and should not resort to industrial action to advance their interests in their conditions of service. That makes them vulnerable to having less attention paid to their legitimate concerns in relation to such matters, than others who can advance their interest through normal bargaining processes open to them’.

2. Section 12 of the Magistrates Act 90 of 1993 provides that magistrates are entitled to such salaries, allowances or benefits as are – determined by the President by notice in the Gazette, after taking into account the recommendations of the Independent Commission for the Remuneration of Public Office-Bearers established under section 2 of the Independent Commission for the Remuneration of Public Office-Bearers Act, 1997; and approved by Parliament in terms of section 12(3). The Act requires the Independent Commission to consult with the Minister and Cabinet Minister responsible for Finance; and the Chief Justice or designee. Also, the notice must come into effect no later than a year from the date specified in it.

3. Section 12 (3) of the Magistrates Act sets out the parliamentary process to be followed: The notice must be submitted to Parliament for approval before it is published. Parliament must, by way of resolution, either approve the notice, whether in whole or in part, or disapprove it.

4. The Independent Commission for the Remuneration of Public Office-Bearers is required in terms of section 8(6) of the Independent Commission for the Remuneration of Public Office-Bearers Act to take into account various factors when making its recommendations, among others the role, status, duties, functions and responsibilities of magistrates.

5. On 26 July 2012, the Commission recommended an across-the-board inflation-related adjustment to all public office-bearers of 5.5% with effect from 1 April 2012, which was published in the Gazette. The President made his determination, giving effect to the Independent Commission’s recommendations, which he tabled on 20 August 2012.

6. The Committee notes that the Association of Regional Court Magistrates of Southern Africa (ARMSA) challenged the 2011 determination for regional court presidents and regional magistrates on review: On 3 September 2012, Bertelsmann J in Association of Regional Court Magistrates of Southern Africa v the President of the Republic of South Africa and Others (2010/11)[2012] ZAGPPHC 186 held that the Independent Commission for the Remuneration of Public Office-Bearers had failed to comply with section 8(6) of the Independent Commission for the Remuneration of Public Office-Bearers Act 92 of 199 and set aside the determination in part and referred to the President to reconsider his decision. The Court however upheld the decision relating to a 5% salary increase for regional magistrates and regional court presidents with effect from 1 April 2010 so that these magistrates would not receive the lower salary in the meantime. The decision was taken to the Constitutional Court , being argued recently. The Committee understands that judgement is pending.

7. On 15 February 2013, the Committee met with the Chairperson of the Lower Courts Remuneration Committee (LCRC) from the Magistrates Commission. He requested that the Committee consider recommending to the National Assembly that the draft notice be approved to allow magistrates to receive an inflation-related adjustment for 2012. This must occur before the 31 March 2013 to comply with the section 12(2) of the Magistrates Act.

8. The Committee received further written submissions from both the Judicial Officers Association of South Africa (JOASA) and ARMSA following its meeting with the LCRC. On 12 March 2013, at the Committee’s invitation, both JOASA and ARMSA appeared before it and raised issue with the process followed by the Independent Commission in reaching its annual recommendation. They requested that the Committee intervene.

9. The Committee, however, understands its role to be limited: it must apply its mind to either recommend to the National Assembly that it approve the President’s determination (in whole or in part) or disapprove it. The Committee has some sympathy for the contents of the submissions received from magistrates’ organisations but the Committee is in no position, nor does it feel that would it be appropriate, for it to interrogate the recommendations of the Independent Commission for the Remuneration of Public Office-Bearers.

10. The Committee takes a dim view of the statements – threats even - from certain (not all) quarters of the magistracy to embark on a course of illegal industrial action. This cannot be supported. No matter the level of frustration, it is unacceptable that the public be disproportionately prejudiced in this way. The Committee draws attention to the words of Chaskalson CJ in the van Rooyen judgement quoted above. Further, the Committee is of the view that magistrates should know the importance of following due process.

11. The Committee believes that, for now, the best course of action is to ensure that the inflation-related salary increase of 5.5% for magistrates takes effect and, therefore, recommends that the National Assembly approves the Draft Notice and Schedule submitted in terms of section 12(3) of the Magistrates Act 90 of 1993, determining the rate at which salaries are payable to magistrates annually, with effect from 1 April 2012 .

Report to be considered.