ATC130311: Report of the Select Committee on Security and Constitutional Development on the Draft notice and schedule determining the rate at which salaries, allowances and benefits are payable to magistrates annually for 2012-2013, dated 11 March 2013

NCOP Security and Justice

Report of the Select Committee on Security and Constitutional Development on the Draft notice and schedule determining the rate at which salaries, allowances and benefits are payable to magistrates annually for 2012-2013, dated 11 March 2013

Report of the Select Committee on Security and Constitutional Development on the Draft notice and schedule determining the rate at which salaries, allowances and benefits are payable to magistrates annually for 2012-2013, dated 11 March 2013

1. Introduction

Section 219(2) of the Constitution provides for national legislation to be enacted to establish an Independent Commission to make recommendations concerning the salaries, allowances and benefits.

Subsection (5) provides for national legislation to establish frameworks for determining salaries, allowances and benefits of judges, the Public Protector, the Auditor-General, and members of any commission provided for in the Constitution, including the Broadcasting Authority referred to in section 192.

The Independent Commission for the Remuneration of Public Office Bearers (ICRPOB) is obliged to make annual recommendations relating to salaries, benefits, allowances and resources required by public office bearers in terms of Section 8 (4) and (5) of the Independent Commission for the Remuneration of Public Office Bearers Act of 1997.

Government Notice 583, published in the Government Gazette no. 35563 dated 26 July 2012 laid out the ICRPOB decision to award all public office bearers and amount of 5.5% increase with effect of 1 April 2012. Included in Schedule 6 of the Notice is the remuneration scales for Magistrates, Senior Magistrates, Chief Magistrates, Regional Magistrates, Regional Court Presidents and Special Grade Chief Magistrates.

Section 12(1) of the Magistrates’ Act (90 of 1993) spells out the procedures for determining the salaries of Magistrates:

Subject to the provisions of this section, any person occupying the office of magistrate shall, in respect of that office, be paid a salary in accordance with the scale determined from time to time for his rank and grade by the Minister by notice in the Gazette in consultation with the Commission and after consultation with the Commission for Administration and with the concurrence of the Minister of State Expenditure.

Section 12(4)(a) provides for such a notice as contemplated in section 12(1) shall be tabled in Parliament within 14 days after publication of such notice if Parliament is in session , or if Parliament is not in session, within 14 days after the commencement of its next ensuing session.

Section 4 (b) provides for Parliament to disapprove by resolution such a notice or any provision thereof shall lapse to the extent that it was disapproved with effect from the date on which it was disapproved.

In terms of Notice provided for by the President, tabled with the Speaker of the National Assembly on 20 August 2012, the remuneration of Magistrates, with effect from 1 April 2012 sets out the determination as follows:

2.1 A basic salary component equal to 60% of the total package, which constitutes the pensionable salary

2.2 pension benefit contribution to the applicable pension fund; and

2.3 A flexible portion for the remaining amount of the total package

T he judgment of Judge E Bertelsmann in Association of Regional Magistrates of Southern Africa v President of the Republic of South Africa and Others (2010/11) [2012] ZAGPPHC 186 (judgment) found that the Independent Commission for Remuneration of Public Office-Bearers (ICRPOB) failed to comply with section 8(6) of the Independent Commission for Remuneration of Public Office-Bearers Act (Act No.92 of 1997), to take into account factors relating to the role, status, duties, functions and responsibilities of magistrates.

2. Meeting of the Committee on 13 September 2012

The issue was discussed at a meeting of the Select Committee for Security and Constitutional Development on 13 September 2012. This meeting heard presentations from the Association of the Regional Magistrates Association of South Africa and the Judicial Officers Association of South Africa. The chairperson of the Independent Commission for the Remuneration of Public Office Bearers declined to attend the meeting.

2.1 The Association of Regional Magistrates of Southern Africa

On 4 September 2012, the Association of Regional Magistrates of Southern Africa which claim to represent 90% of regional magistrates, made a submission appealing to the Committee not to approve the salary determination of the ICRPOB on the grounds that the ICRPOB failed to comply with the provisions of the Act.

The Association obtained a judgement which confirms that the ICRPOB failed to comply with the provisions of section 8 the ICRPOB Act (92 of 1997). According to the Parliamentary Legal Advisor, the Court found that the President relied on the flawed recommendation of the Commission in his determination for the salary determinations for 2010/11.

2.2 The Judicial Officers Association of South Africa

The Judicial Officers Association of South Africa (JOASA) presented to the Committee and indicated that more than 70% of magistrates belonged to the association. They indicated that there was no consideration of the recommendations of the Lower Courts Remuneration Committee which was established as a result of the Magistrate’s Commission. They also indicated that there were prosecutors that were earning more than magistrates earned. They wanted to be considered as civil servants as their remuneration was dependent on the determinations of the Independent Commission for the Remuneration of Public Office Bearers. Lastly, they suggested that the non pensionable allowances for magistrates stood at 60% even though civil servants had theirs increased to 70% on the instruction of the Director General of the Department of Public Works and administration. They requested Parliament to remedy the situation.

2.3 Parliamentary Legal Advisors

The Parliamentary Legal Advisor reported that they considered the judgement handed down in the Gauteng North High Court on 3 September 2012. The judgment was enforceable while the Department of Justice and Constitutional Development indicated that they would be appealing the judgement but have yet to do so. In terms of the advice provided, they suggested that the Committee consider Section 12(3) of the Magistrates’ Act and section 2(4) of the Judges’ Remuneration and Conditions of Employment Act which made provision for the President to determine the salaries, benefits and allowances of the judiciary, after taking into consideration the recommendations of the ICRPOB.  Such determination must be approved by a resolution of Parliament before it could take effect.  Parliament may reject or approve the determination.  Section 8(5) of the ICRPOB Act only required the recommendations to be submitted to Parliament prior to publication.

According to the Parliamentary Legal Advisor, Parliament might not directly engage on the consultation processes required for the determination of salary increases for public office bearers in terms of sections 55 (2) and 69 of the Constitution, but was obliged to monitor and maintain oversight of the exercise of national executive authority.

The Parliamentary Legal Advisor concluded by indicating that the judgement concludes that Parliament might call the President to account on whether he had complied with all the legal prescripts prior to making the final determination on the remuneration of public office bearers.  The judgment provided appropriate guidelines to the Committees on how to deal with the matter.

3. Meeting of the Committee held on 26 February 2013

At its meeting held on 26 February 2013, the Committee reaffirmed its position that it would not approve the ICRPOB and subsequently the President’s determination on the following basis:

· The Committee had representations from the magistrates associations, JOASA and ARMSA and have taken their requests into account;

· The Committee took the Bertelsmann judgement (case no 20210/11 North Gauteng Division) into account;

· The Committee noted that the chairperson of the IRCPOB declined to meet with the Committee; and

· The Committee wanted to hear from the Presidency in terms of the determination and requested a briefing from both the Parliamentary legal advisor and the President’s Parliamentary Counsellor on the matter.

4. Meeting of the Committee held on 27 February 2013

At a meeting held on 27 February 2013, the President’s Parliamentary Counsellor briefed the Committee in a closed session on the issue and matters that have to be considered by the Committee. He informed the Committee that there was a pending court case before the Constitutional Court where both ARMSA and JOASA were contesting the President’s determination. It was also common cause that if Parliament does not reach a decision by the end of March 2013, magistrates would not be receiving any increase at all for the 2012/2013 financial year.

The Committee elected to wait until a decision had been reached by the President and for the conclusion of such a court case.

5. Resolution of the Committee on 11 March 2013

At a meeting held on 11 March 2013 the Committee considered the following

1. The fact that Magistrates would not receive an increase for the 2012/2013 financial year;

2. Not all Magistrates were members of JOASA and ARMSA and the Committee received a submission from Magistrate Saunders who pointed out that if no decision is reached, magistrates would not be receiving the 5.5% increase;

3. The Constitutional Court case with ARMSA and JOASA will have no real effect on the 2012/2013 determination and refers to the 2010/2011 financial year;

4. The legal opinion from the Parliamentary Legal Services and the terms of the Bertelsmann Judgement ; and

5. Nothing precludes the Committee from approving the increase in the interim while the court determines the outcome of the case.

In view of the above reasons, the Committee decided to rescind its decision taken on 21 September 2012 and approve the Notice of Determination of Remuneration of Magistrates in terms of Section 12 of the Magistrates Act, with immediate effect.

Report to be considered.

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