PUBLIC SERVANTS ASSOCIATION OF SOUTH AFRICA
THE MAGISTRATES AMENDMENT BILL

(a) Retirement age
(b) Criminalisation of misconduct proceedings

The Magistrates Amendment Bill (B92 - 97) deals inter alia with employment related issues viz -

(a) the lowering of the mandatory compulsory retirement age from 65 years to 60 years; and

(b) the introduction of penal sanctions in respect of non-compliance with regulatory provisions pertaining to misconduct proceedings.

We believe that the two mentioned amendments are inconsistent with the Labour Relations Act, the employee rights of Magistrates, the constitutional equality principle and the right to collective bargaining.

EARLY RETIREMENT AND COMPULSORY RETIREMENT AGES

PROPOSAL
Instead of introducing a compulsory retirement age of 60 years for Magistrates as envisaged in section 4 of the Magistrates Amendment Bill, it is suggested that the Bill be amended to provide -

(a) that Magistrates be afforded a right to voluntary retirement as from the age of 60 years ; and

(b) that a Magistrate, on the recommendation of the Commission, be retired by the Minister if the Magistrate's mental and physical health does not enable him/her to continue to hold such office.

Important reasons are advanced below for the positive consideration of the proposals, which reasons can be condensed as follow:

(a) Existing retirement rights will not be impaired.

(b) Equality of voluntary retirement rights and compulsory retirement will be achieved for all Magistrates.

(c) The pension benefits of Magistrates will, under certain circumstances, no longer be adversely affected when compared with the benefits of the rest of the members of the Government Employees Pension Fund, of which Fund Magistrates are members.

(d) The objections regarding the constitutionality of the retirement arrangement for Magistrates and the authority of the Commission and the Minister, will be limited.

The official status of Magistrates
In terms of section 213(1) read with section 2 and 210 of the Labour Relations Act 1995 and the Magistrates Act 1993, the State as legal person is the employer of persons who are appointed as Magistrates and such persons are, notwithstanding their independent official status as legal adjudicators, being regarded as employees for purposes of the application of the Labour Relations Act.

Historic Development
Before 1 October 1993, Magistrates of the Department of Justice of the former RSA Public Service, were appointed in terms of the Public Service Act. Under the Public Service Act their pension and retirement ages were arranged as follows:

(a) Compulsory retirement age: 65 years

(b) Pension retirement age: 55 years for women and 60 years for men, if they were permanently appointed on or before 24 June 1954 - in other words such Magistrates can opt to retire at any age on or after attaining the mentioned ages, before obtaining the compulsory retirement age of 65 years. Magistrates who were appointed after 24 June 1954, have no optional retirement age but could, in terms of the Public Service Act, apply for retirement before attaining the age of 65 years, which application could be approved or be rejected by the employer.

As from 1 October 1993, the continued employment of Magistrates was arranged in terms of the Magistrates Act. In terms of section 13 of this Act, the compulsory retirement age is 65 years, but optional earlier retirement ages are protected by the transitional arrangements as contained in section 18(3) of the said Act. The protection of the retirement age of public servants was further entrenched by section 212(7)(b) of the Interim Constitution stipulating that "The retirement age applicable to a public servant by law as at 1 October 1993, shall not be changed without his or her consent", and section 241(5) of the Interim Constitution in respect of all persons employed as part of the judiciary.

In view of the above protective measures, Magistrates of the former TBVC and Homeland Public Services, were integrated into the rationalized department of Justice judiciary, with retention of their retirement ages of 60 years and compulsory retirement age of 65 years.

In view of the historic arrangements regarding the judiciary and the final integration of same, a measure of inconsistency exists regarding the formal retirement arrangements of Magistrates which, out of necessity, should be addressed and which can be summarized as follow:

(a) Some Magistrates have the right to retire from the age of 60 years (optional retirement right) with a compulsory pensionable retirement age of 65 years.

(b) Many Magistrates do not have an optional right of retirement and only the compulsory pensionable age of 65 years applies to them.

Retirement arrangements for public servants and pension restructuring arrangements
Contrary to the retirement position of Magistrates, the laws governing the employment of public servants and educators have been amended with effect from 1 May 1997, in order to provide that such persons shall have the right to retire "from the Public Service on the date on which he or she attains the age of 55 years, or on any date after that date".

The compulsory retirement age for public servants and educators is still 65 years.

The optional retirement age from 55 years was introduced for educators and public servants because of the restructuring of the retirement benefits of the Government Employers' Pension Fund, of which Fund Magistrates are also members. A consequence of the restructured retirement benefits is that the pension annuity and gratuity will be reduced by one third of one percent for each completed month between the member's actual date of retirement on his or her pension retirement date. For public servants and educators the reduction is only effected up to the age of sixty years for voluntary optional retirement, which means that departments/provinces no longer have to compensate the Fund for such early retirements.

However, the Magistrates Act does not provide for an optional retirement age and determines retirement at attaining the age of 65 years. Contrary to other members of the Government Employees Pension Fund.

(a) the reduction factor for Magistrates is being applied up to the age of 65 years and not 60 years, as in the case of public servants and educators; and

(b) in the absence of an optional voluntary retirement age arrangement, Magistrates can only retire early (before the age of 65 years), if such retirement is approved by the employer and in which case the reduction factor is not applied and the employer is then compelled to compensate the Fund for such early retirement.

In addition to the above, Magistrates, as members of the Government Employees Pension Fund, also qualify under certain circumstances for the payment of their actuarial pension interest (lump sum) from the Fund. For them this benefit, in comparison with that of other members of the Government Employees Pension Fund is adversely affected by the fact that they do not have the statutory stipulated right to retire before attaining the age of 65 years.

In this regard we wish to point out that rule 14.4.2(b) of the Rules of the Government Employees Pension Fund determines that the actuarial interest of a member who has attained the age of 55 years, is calculated in accordance with the formula [G + (A x A(X))], in which G and A are the amounts of the gratuity and annuity respectively which the member would have received in terms of the rules had he/she retired on that date. In the case of a 57-year-old public servant whose pension retirement date is the age of 60 years and who resigns voluntarily, the gratuity and annuity in the calculation of his/her actuarial interest will be calculated and then reduced by one third of one percent for each completed month between the member's actual date of resignation and his/her pension retirement date (age 60 years).

In the case of a Magistrate with the same particulars as the above-mentioned public servant, however, his/her gratuity and annuity will be calculated and reduced by one-third of one percent for each completed month between his/her actual date of resignation and his/her pension retirement date (age 65 years). In this respect it is quite clear that Magistrates would in certain circumstances receive a much smaller pension benefit than other members of the Government Employees Pension Fund, merely because they do not have a right to retire before attaining the age of 65 years.

Because of the introduction of the right of an earlier retirement date for other members of the Government Employees Pension Fund, the pension fund rules were amended to the effect that a member's period of pensionable service will only be increased to the age of 60 years in the case of retirement due to ill-health and in the case of death. In this respect the pension benefits of Magistrates have been reduced to the same extent as those of public servants, regardless of the fact that Magistrates have not gained the right of early retirement.

To promote equality among Magistrates regarding their voluntary retirement age and compulsory retirement age and to prevent them from being adversely affected in view of the existing restructured pension arrangements, it has become necessary to legally arrange their retirement in accordance with the benefits of the Government Employees Pensioen Fund in order to prevent them being detrimented by the pension arrangements.

THE MAGISTRATES AMENDMENT BILL (B 92 - 97)
Clause 4 of the Bill provides that the compulsory retirement age of Magistrates will be lowered from 65 years to 60 years.

There are a number of problems with the formulation and interpretation of the proposed regulation of the mandatory retirement age for Magistrates, which could broadly be summarized as follow:

(a) Vested rights and interests are being affected without inter alia proper negotiations being conducted and agreement being reached about these.

(b) The amendments are in conflict with section 18(3) of the Magistrates Act, which section is not repealed or amended so that the amendment cannot be implemented in respect of existing personnel.

The amendment will not succeed in achieving equality among Magistrates regarding -

(a) an optional age of retirement and the right to voluntary retirement thereafter; and

(b) Magistrate's final retirement.

(c) It is questionable whether the Magistrates Commission and the Minister of Justice, constitutionally or otherwise, remain free to recommend and determine respectively that a Magistrate will not continue in office after attainment of the age of sixty years.

(d) Whether a provision which sets a mandatory compulsory retirement age, especially in the light of the existing compulsory retirement age of 65 years, is constitutionally correct.

(e) Whether consistency in the Public Service as a whole and especially among the legal fraternity in the Public Service is promoted by the new arrangement.

The vested rights of Magistrates and section 18(3) of the Magistrates Act
It is not the compulsory retirement age of 65 years that was questioned by the PSA and others, but the absence of provision in terms of which Magistrates are, consistent with other members of the Government Employees Pension Fund, afforded the right to retire voluntary at any stage after attaining the age of 55 years but especially the age of 60 years. As stated above, this arrangement is necessary in order to assure that Magistrates are not adversely effected in the payment of their pension benefits in view of the existing retirement age arrangements applicable to them.

Instead of introducing an age from which the right to optional retirement commences, the lowering of the compulsory retirement age is intended which arrangement could affect, for various reasons, the position, rights and interests of serving Magistrates dramatically. The least impairment would be to allow Magistrates to retire voluntarily from 60 years of age.

It must also be pointed out that section 18(3) of the Magistrates Act is retained and according to which the terms and conditions of employment of Magistrates who are in service from a date on or before 11 March 1994, should not be less beneficial than those conditions applicable immediately before such date.

With the retention of section 18(3) of the Magistrates Act and the introduction of a compulsory retirement age of 60 years, greater diversity rather than equality with regard to the compulsory retirement age for Magistrates, is foreseen.

Constitutionality and the authority of the Commission and Minister
On request of the PSA, Prof. M P Olivier: Co-Director: Centre for International and Comparative Law, comments as follow on the above matter:

"8. The Second issue relates to the authority of the Commission and the Minister respectively to recommend or determine that the Magistrate will not continue in office after attainment of retirement age of 60 years. As the proposed section presently reads, it would appear that the wish of the magistrate to continue and his/her mental and physical ability to do so are in themselves not sufficient to ensure his/her continued employment. That this is the correct inference to be drawn in my opinion also flows from the almost peremptory and mandatory tone of the introductory sentence of the envisaged amendment to section 13(1) of the Magistrates Act, which emphatically states that "A Magistrate shall vacate his or her office on attaining the age of 60 years..." (my emphasis).

9. It is suggested that the matter be treated on a different basis. In view of the relatively low retirement age now foreseen, and bearing in mind the constitutional ramifications (to be discussed below) and profession-specific considerations to be taken into account, it is suggested that a magistrate should, on attaining the age of 60 years, be allowed to continue in his/her position if he/she so wishes, at least until the age of 65 years, unless the Commission finds that he/she is mentally and/or physically not sufficiently healthy to continue to hold such office and recommends accordingly to the Minister.

See par 29 below for a suggested alternative formulation.

10. There are important profession-specific considerations to be taken into account in the case of Magistrates who face retirement. Due to the specific nature and peculiar requirements of their occupation, special statutory arrangements are often made to ensure the retention of the services of judicial officers - often well beyond the normal retirement age of other categories of employees.

11. For example, judges (including Constitutional Court judges) are entitled to continue in service until the age of 70 (although they may voluntarily resign when attaining the age of 65 years after 15 years' active service), subject to removal on the basis of incapacity, gross incompetence or gross misconduct.

Cf section 176(1) and (2) of the Constitution of the Republic of South Africa, Act 108 of 1996 as well as sections 3 and 10 of the Judges' Remuneration and Conditions of Employment Act, Act 88 of 1989 (as amended).

12. Moreover, a judge may be allowed to continue to perform active service until the age of 75 years if, on attaining the age of 70 years, he/she has not yet completed 15 years' active service.

See section 4(1) of the Judges' Remuneration and Conditions of Employment Act.

13. Furthermore, a judge who has been discharged from active service must (subject to exception) be available to perform service as a judge until he/she attains the age of 75 years for a period or periods which in the aggregate, amount to three months a year (or more than three months, if he/she so wishes), if that judge's mental and physical health enables him or her to perform such service.

See section 7 of the Judges' Remuneration and Conditions of Employment Act.

14. The third issue concerns the constitutional considerations at stake. The primary question to be asked is whether a mandatory retirement age of as low as 60 years does not constitute an infringement of the fundamental right not to be unfairly discriminated against on the basis of age.

See section 9(3) of the Constitution.

15. The Constitution does not explicitly regulate the retirement age of Magistrates. It merely states that:

"Other judicial officers [i.e. judicial officers other than judges of the Constitutional Court and the High Court] must be appointed in terms of an Act of Parliament which must ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers take place without favour or prejudice."

(See section 174(7) of the Constitution.)

16. Apart from having regard to the peculiar dispensation applicable to judges in South Africa, as outlined above (see par 10 to 13 supra), the experience of other jurisdictions where a constitutional and/or statutory protection of the right not to be discriminated against on the basis of age exists, may serve as a useful analogy.

See section 39(1)(c) of the Constitution, which empowers a court, tribunal or forum to consider foreign law when interpreting the Bill of Rights.

17. In various Supreme Court cases in Canada the court had to determine whether the setting of a mandatory retirement age (usually 65) violated the principle of equality as contained in section 15 of the Canadian Charter of Rights and Freedoms. In a number of judgements involving a mandatory retirement age for university academics the court found that although there had indeed been a violation of section 15, it had been saved on the basis that "a reasonable basis existed for concluding that it impaired the relevant right as little as possible given the government's pressing and substantial objectives". Some of the considerations taken into account in this regard related to the tenure system which operated at the universities and the desire to maximise academic freedom by minimising interference and evaluation, since the elimination of mandatory retirement would adversely affect this - there could well be an increase in evaluation and attempts to dismiss academics for cause.

See McKinney v University of Guelph (1990), 2 C.R.R. (2d), at 35-42; Dickason v University of Alberta (1992), 2 C.R.R. (2d) at 16.

18. However, in another judgement the Supreme Court struck down section 31 (as it then read) of the Unemployment Insurance Act, which effectively excluded applicants from ordinary unemployment insurance benefits once they had turned 65, on the basis that it did not constitute a reasonable limitation of the right to equality contained in section 15 of the Charter. The court remarked: "There can be no doubt that if mandatory retirement provisions violate section 15(1), then the denial of unemployment benefits to those over age 65 must violate section 15(1) as well.....".

CF Tétreault-Gadoury v Canada (1991), 4 C.R.R. (2d), at 23-25.

19. In the United States of America peculiar expression has been given to the right of older workers not to be discriminated against by the adoption of the Age Discrimination in Employment Act in 1967 (ADEA), patterned after the Civil Rights Act of 1964.

See generally Player Federal Law of Employment Discrimination (3rd ed) (1992) 14.

20. The ADEA prohibits discrimination against employees or applicants for employment who are at least 40 years old. According to section 2(b) of the Act the purpose of the Act is

"... to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment, to help employers and workers find ways of meeting problems arising from the impact of age on employment." (my emphasis)

See generally Cihon & Castagnera Labor and Employment Law (2nd ed) (1993) 396.

21. The law which applies to all private employers with 20 or more employees as well as to state and local governments and certain other categories inter alia forbids the failure or refusal to hire or to discharge any individual, or the discrimination against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's age.

Section 4 of the ADEA.

22. The main effect of the ADEA is to prohibit mandatory retirement.

Section 4(f)(2)(A) of the ADEA; Cihon & Castagnera 397-398.

23. There is no upper age limit: in 1987 an amendment to the ADEA removed the upper limit of 70 years on the Acts's protection.

See Cihon & Castagnera 399.

24. In fact, the United Supreme Court accepts that the process of psychological and physiological degeneration caused by aging varies with each individual and that a case-by-case basis should be adopted in order to determine whether somebody is still able to continue in his/her position. "The basic research in the field of aging has established that there is a wide range of individual physical ability regardless of age. As a result, many older American workers perform at levels equal or superior to their younger colleagues...."

CF Western Air Lines, Inc v Criswell 472 U.S. 400 (1985); Cihon & Castagnera 401.

25. However, the Act also makes provision for certain exceptions, where discrimination may be allowed. In terms of these exceptions there will be no violation of the ADEA if:

(a) the age classification or preference is based on "a bona fide occupational qualification reasonably necessary to the normal operations of the particular business" (see section 4(f)(1) of the ADEA; Cihon & Castagnera 397, 399);

(b) the employer observes "the terms of a bona fide seniority system that is not intended to evade the purposes of the Act, except that no such seniority system shall require or permit the involuntary retirement of any individual...because of the age of such individual..." (section 4(f)(2)(A); Public Employees' Retirement System of Ohio v Betts 492 U.S. 158 1989); see also Sedmak & Vidas Primer on Equal Employment Opportunity (6th ed, 1994) 99);

(c) the differentiation is based on reasonable factors other than age (section 4(f)(1); Zimmer et al Cases and Materials on Employment Discrimination (3rd ed, 1994) 724; Player 145);

(d) the employee is dismissed or otherwise disciplined for good cause (section 4(f)(3); Kaminshine "The Cost of Older Workers, Disparate Impacet, and The Age Discrimination in Employment Act" 42 Florida Law Review (1990) 230 at 236).

26. It should be noted that these exceptions, in particular (a) and (c) above, are narrowly construed, thereby preserving the general protection against age discrimination as far as possible.

See Cihon & Castagnera 401; Sedmak & Vidas 98.

27. On the basis of the provisions of the ADEA the Supreme Court has, for example, struck down the requirement set by an airline that its flight engineers have to retire at age 60.

Western Air Lines, Inc v Criswell 472 U.S. 400 (1985)."

It is the view of the PSA that the problems identified above can largely be avoided if the proposal regarding the right to voluntary retirement as from the age of 60 years is accepted.

THE CRIMINALISATION OF MISCONDUCT PROCEEDINGS
In terms of clause 6 of the amending Bill it is foreseen that section 16 of the Magistrates Act shall be amended by the addition of the following subsection:

"A regulation made under subsection (1)(j), and which regulates the attendance of persons at misconduct proceedings contemplated in such a regulation, may provide that any person who contravenes a provision thereof or fails to comply therewith shall be guilty of an offence and on conviction be liable to a fine, or to imprisonment for a period not exceeding three months."

A provision such as this must be regarded as unfortunate and as an anachronistic relic of the past. It is reminiscent of an era where a clear distinction between labour law-related situations and criminal law has not been made. There is a world-wide trend to decriminalise labour law - the new Labour Relations Act is an excellent example of this phenomenon.

This trend is also discernible in the rest of the public sector employment relationship. It is significant to note that the initial version of the recent Public Service Laws Amendment Bill (B32-97), which equally provided for the criminalisation of misconduct proceedings involving public servants, has for the very same reason not been sustained in the later draft (see the Public Service and Administration (National Assembly) (W32B-97)).

In view thereof, it is recommended that clause 6 of the proposed amending legislation be deleted - in particular insofar as it pertains to the position of Magistrates in the course of the misconduct proceedings and especially as far as it pertains to Public Service Act personnel
who have to attend such proceedings.