ATC130312: 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
The following
Report replaces the Report of the Select Committee on Security and
Constitutional Development which was published on page 555 in the
Announcements,
Tablings
and Committee Reports of 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
)(
a) of the
Magistrates Act (90 of 1993) spells out the procedures for determining the
salaries of Magistrates:
Magistrates are entitled to such salaries,
allowances or benefits-
(i) as
determined by the President from time to time by notice in the Gazette,
after taking into consideration 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( Act No. 92 of 1997); and
(ii)
approved
by Parliament in terms of subsection (3).
Section
12(3
)(
a) provides for such a notice as contemplated in
section 12(1)(a)
A notice issued under subsection (1)(a) must
be submitted to Parliament for approval before publication thereof.
In terms of section 12(3
)(
b) Parliament must by resolution-
(i)
approve
the notice, whether in whole or in part;
or
(ii)
disapprove
the notice
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
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
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 Magistrates 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 Presidents 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
·
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 Presidents Parliamentary Counsellor on the
matter.
4. Meeting of the
Committee held on 27 February 2013
At a meeting held on 27 February 2013, the Presidents
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
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
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.
Documents
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