Judges Remuneration and Conditions of Employment Draft Bill: date unclear
[PMG Ed note: attempts are being made to obtain the correct version and complete Bill]
The aggregate of the salary payable in terms of subsection (1) to a Constitutional Court judge or judge who was or is discharged from active service in terms of section 3 (1)(c) or (d) (or 3(3)(c))??? before he or she attains the age of 65 years, shall, subject to paragraph (d), be not more than 80 per cent of his or her highest salary during the period of his or her active service.
(d) [Subject to the provisions of subsection (2),] The aggregate of the salary payable in terms of subsection (1) to a Constitutional Court judge or judge who was or is discharged from active service in terms of section 3(1) or 3(3) and has performed active service for a period of not less than 20 years, shall be equivalent to the salary applicable to the highest office held by him or her [on discharge from] during his or her period of active service.
(4) For the purposes of subsection (1) the period of active service in any particular office shall be calculated by the year and the month, and fractions of a month shall-
(a) in respect of any service performed before the date of commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, be disregarded; and
(b) in respect of any service performed after the date of commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, be taken into account.
(5) If a Constitutional Court judge or a judge to whom a salary is payable in terms of this section dies, the payment of the salary shall cease with effect from the first day of the month following the month in which he or she died.
Gratuity payable to Constitutional Court judges and judges after discharge from active service
6. (1) Subject to the provisions of subsections (2), (3) and (4), any Constitutional Court judge or judge who on or after the fixed date was or is discharged from active service in terms of section 3 or 4, shall, in addition to any salary payable to him or her in terms of section 5, be paid a gratuity which shall in respect of every office held by him or her during his or her active service be calculated in accordance with the formula-
D x 2 X E
15
in which formula the factor-
(a) D represents the salary which at the time of the discharge of such Constitutional Court judge or judge from active service was applicable to the office concerned;
(b) E represents the period in years of active service, but not exceeding 20 years, of such a Constitutional Court judge or judge in the office concerned.
(2) After the completion of 15 years' active service a Constitutional Court judge or judge shall once be entitled, if he or she so requests, to be paid the gratuity (or any part thereof) which has until the date of the request accrued in accordance with the formula in subsection (1).
(3) After the completion of 20 years' active service a Constitutional Court judge or judge shall once be entitled, if he or she so requests, to be paid the gratuity (or any portion thereof) which has until that date accrued in accordance with the formula in subsection (1), or the balance available after the exercise of the power in terms of subsection (2).
(4) A judge referred to in section 4(1) shall once be entitled, when he or she attains the age of 70 years and has completed not less than 10 years' active service, to be paid, if he or she so requests, the gratuity (or any portion thereof) which has until the date of that request accrued in accordance with the formula in subsection (1).
(5) The total amount of any gratuity payable in terms of this section to a Constitutional Court judge or judge shall not exceed three times his or her highest salary during the period of his or her active service.
(6) For the purposes of this section the period of active service shall be calculated by the year and the month, and fractions of a month shall be taken into account.
(7) Notwithstanding anything to the contrary contained in any other law, the gratuity payable to Constitutional Court judges or judges under this section shall not be taxable.
Performance of service by Constitutional Court judges and judges discharged from active service
7. (1) (a) A Constitutional Court judge or judge who has been discharged from active service-
(i) except a judge who has been so discharged in terms of section 3 (1)(b), (c) or (d) or except a Constitutional Court judge who has been discharged in terms of section 3(3)(b) or (c), shall[, subject to subsection (2A),] be available to perform service until he or she attains the age of 75 years, for a period or periods which, in the aggregate, amount to three months a year; or
(ii) who has already attained the age of 75 years, may perform further service, if his or her services are, after consultation with the Minister, requested by the Chief Justice, President of the Supreme Court of Appeal or the judge president in whose area of jurisdiction he or she resides or of the [division] court to which he or she was attached when discharged from active service, or with his or her consent, any other judge president, in consultation with the Chief Justice or the said judge president, as the case may be, and that Constitutional Court judge's or judge's mental and physical health enable him or her to perform such service.
(b) A Constitutional Court judge or judge may voluntarily perform more than three months' service a year, if his or her services are so requested.
(c) Service as mentioned in paragraph (b), (c)[, (d)] or (e) of subsection (2) may be performed only with the consent of the Constitutional Court judge or judge concerned.
(2) For the purposes of subsection (1) [and subject to subsection (2A)] 'service' means-
(a) service as a Constitutional Court judge??? or judge of the [Supreme Court of South Africa] Supreme Court of Appeal or a High Court as contemplated in the Supreme Court Act, 1959 (Act 59 of 1959), in the same or a higher office held by the Constitutional Court judge or judge concerned on discharge from active service or with the approval of the Constitutional Court judge or judge concerned, service in a lower office;
(b) service as a [chairman] chairperson or a member of a commission as contemplated in the Commissions Act, 1947 (Act 8 of 1947);
(c) service as a [chairman] chairperson or a member of a body or institution established by or under any law;
[(d) service as a judge of the High Court or Supreme Court of any of the former independent states of Transkei, Bophuthatswana, Venda or Ciskei;]
(e) any other service which the Minister may entrust to him or her.
[(2A) A judge who performs service as a constitutional judge after he or she has been discharged from active service, shall for the purposes of this Act be deemed to perform service as contemplated in subsection (1).]
(3) A Constitutional Court judge or judge who performs service in terms of subsection (1) shall monthly be paid an additional salary equal to the salary which at that time is payable to the holder of the office which he or she holds for that period, or which is payable to the holder of the office which he or she held at his or her discharge from active service, whichever salary is the greater.
[(4) The salary of a judge who contrary to subsection (1) fails to perform the minimum period of service referred to in that subsection, shall, for every full year during which he so fails, be reduced by two per cent: Provided that such reduction shall, in the aggregate, not amount to more than 10 per cent of such salary.]
(5) (a) The registrar of the [division of the] Constitutional Court, Supreme Court of Appeal or a High Court where a Constitutional Court judge or judge performs service in terms of subsection (1), shall notify the Director-General: Justice and Constitutional Development immediately of the commencement and duration of the service.
[(b) The registrar of the Constitutional Court shall notify the Director-General: Justice and Constitutional Development immediately of the commencement and duration of service performed by a judge in terms of subsection (2A).]
(6) The Director-General: Justice and Constitutional Development shall keep a register of all service performed by Constitutional Court judges or judges in terms of subsection[s] (1) [and (2A)].
Performance of service as Chief Justice [by Chief Justice] or Deputy Chief Justice by Chief Justice or Deputy Chief Justice or as President or Deputy President of Supreme Court of Appeal by President or Deputy President of Supreme Court of Appeal discharged from active service
7A. (1) (a) A Chief Justice or Deputy Chief Justice who has been discharged from active service, except a Chief Justice who has been discharged from active service in terms of section [3(1)(b), (c) or (d)] 3(3)(c) or (d) ,may, at the request of the President, from the date on which he or she has been discharged from active service, perform service as Chief Justice of South Africa or Deputy Chief Justice for a period determined by the President, which shall not extend beyond the date on which such Chief Justice or Deputy Chief Justice attains the age of 75 years.
(b) A President or Deputy President of the Supreme Court of Appeal who has been discharged from active service, except a President of Deputy President of the Supreme Court of Appeal who has been discharged from active service in terms of section 3(1)(b), (c) or (d), may, at the request of the President, from the date on which or she has been discharged from active service, perform service as President or Deputy President of the Supreme Court of Appeal for a period determined by the President, which may not extend beyond the date on which such President or Deputy President of the Supreme Court of Appeal attains the age of 75 years.
(2) A Chief Justice or Deputy Chief Justice or President or Deputy President of the Supreme Court of Appeal who performs service in terms of subsection (1) shall monthly be paid such remuneration as the President may determine.
Amount payable to surviving spouse of Constitutional Court judge and judge
8. (1) Subject to the provisions of subsection (2) the surviving spouse of a Constitutional Court judge or judge who on or after the fixed date was or is discharged from active service in terms of section 3 or 4 or who died or dies while performing active service, shall be paid with effect from the first day of the month immediately succeeding the month in which he or she dies an amount-
(a) in the case of a surviving spouse of a Constitutional Court judge or judge who was so discharged from active service, equal to two thirds of the salary which was in terms of section 5 payable to that Constitutional Court judge or judge;
(b) in the case of a surviving spouse of a Constitutional Court judge or judge who died while performing active service as a Constitutional Court judge or judge, equal to two thirds of the amount to which that Constitutional Court judge or judge would have been entitled if he or she was discharged from active service in terms of section 3 (1)(a) or (3)(a) on the date of his or her death.
(2) For the purposes of subsection (1) the amount payable to a surviving spouse shall be adjusted whenever the salary applicable to the office held by the Constitutional Court judge or judge concerned on his or her discharge or at his or her death, is increased.
(3) The amount payable to the surviving spouse of a Constitutional Court judge or judge in terms of subsection (1) shall be payable with effect from the first day of the month immediately succeeding the day on which he or she died, and shall be payable until the death of such spouse.
Gratuity payable to surviving spouse of Constitutional Court judge and judge
9. If a gratuity referred to in section 6 would have been payable to a Constitutional Court judge or judge who died or dies on or after the fixed date had he or she not died but, on the date of his or her death, was discharged from active service in terms of section 3 or 4, there shall-
(a) if such Constitutional Court judge or judge is survived by a surviving spouse, be payable to such surviving spouse, in addition to any amount payable to that spouse in terms of section 8; or
(b) if such Constitutional Court judge or judge is not survived by a spouse, be payable to the estate of such Constitutional Court judge or judge,
a gratuity which shall be equal to the amount of the gratuity which would have been so payable to such Constitutional Court judge or judge had he or she not died but was, on the date of his or her death, discharged from active service as aforesaid.
[Removal] Resignation of certain Constitutional Court judges and judges from office
10. (1) A Constitutional Court judge who is a judge contemplated in section 174(5) of the Constitution or a judge who holds office in a permanent capacity, who already has attained the age of 65 years and has performed 15 years' active service may resign from office by notice in writing to the President that he or she no longer wishes to serve in the office of such judge, and shall vacate his or her office upon acceptance of such resignation.
(2) A Constitutional Court judge who is a judge contemplated in section 174(5) of the Constitution or a judge referred to in subsection (1) shall be paid-
(a) a salary in accordance with the provisions of section 5: Provided that the provisions of subsection (2) of that section shall not apply in respect of him or her;
(b) a gratuity in accordance with the formula set out in section 6(1).
[(3) The surviving spouse of a judge referred to in subsection (1) shall, with effect from the first day of the month immediately succeeding the month in which he dies, be paid an amount equal to two thirds of the salary which was payable to that judge in terms of subsection (2) (a), which amount shall be payable until the death of such spouse].
(4) A Constitutional Court judge who is not a judge contemplated in section 174(5) of the Constitution who has completed a 12 year term of office as a Constitutional Court judge or who has attained the age of 70 years, whichever occurs first, may resign from office by notice in writing to the President and must vacate his or her office upon acceptance by the President of such resignation.
(5) A Constitutional Court judge who is not a judge contemplated in section 174(5) of the Constitution referred to in subsection (4) must be paid-
(a) a salary in accordance with the provisions of section 5: Provided that the provisions of subsection (2) of that section shall not apply in respect of him or her;
(b) a gratuity in accordance with the formula set out in section 6(1).
(6) The provisions of section 6(7) apply with the necessary changes in respect of any gratuity payable in terms of subsection (5).
(7) The surviving spouse of a Constitutional Court judge or judge referred to in subsection (1) or (4) must, with effect from the first day of the month immediately succeeding the month in which he or she dies, be paid an amount equal to two thirds of the salary which was payable to that judge in terms of subsection (2) (a), which amount shall be payable until the death of such spouse.
[CHAPTER 3
PROVISIONS APPLICABLE TO THE PRESIDENT AND JUDGES OF THE CONSTITUTIONAL COURT EXCLUSIVELY
(ss 10A-10E)
Remuneration of constitutional judges
10A. (1) Any person who is not a judge of the Supreme Court and who holds office as a constitutional judge shall in respect thereof, in addition to the amounts referred to in section 12 and an allowance at the rate of R3 500 per annum, be paid a monthly salary at a rate determined from time to time by the President by proclamation in the Gazette: Provided that such salary shall not be less than that of a judge of the Appellate Division of the Supreme Court.
(2) A judge of the Supreme Court who has been appointed as a constitutional judge shall, for the duration of his or her term of office as a constitutional judge, in addition to his or her salary referred to in section 2, be paid a monthly allowance equal to the difference, if any, between his or her monthly salary and the salary of a constitutional judge payable in terms of subsection (1).
(3) The provisions of subsection (3) of section 2 shall apply mutatis mutandis in respect of a proclamation issued under subsection (1).
(4) The salary and amounts payable in terms of subsection (1) shall be paid out of revenue.
(4A) The allowance payable in terms of subsection (1) shall not be taxable, unless Parliament expressly provides otherwise.
(5) If a judge to whom a salary is payable in terms of subsection (1) dies, the payment of his or her salary shall cease with effect from the first day of the month following the month in which he or she died.
(6) No constitutional judge shall, without the consent of the Minister accept, hold or perform any other office of profit or receive in respect of any service any fees, emoluments or other remuneration apart from his or her salary and any amount which may be payable to him or her in his or her capacity as such a judge.
Vacation of office by constitutional judges
10B. (1) A constitutional judge-
(a) who has been appointed President of the Constitutional Court under section 97 (2) of the Constitution, shall vacate his or her office upon the expiry of his or her term of office referred to in that section; and
(b) who has been appointed as such under section 99 (1) of the Constitution, shall vacate his or her office upon the expiry of his or her term of office referred to in that section.
(2) A constitutional judge may resign from office by notice in writing to the President and shall vacate his or her office upon acceptance by the President of such resignation.
Gratuity payable to constitutional judges after vacation of office
10C. (1) A constitutional judge who is not a judge of the Supreme Court and has vacated his or her office in terms of section 10B (1), shall be paid a gratuity calculated in accordance with the formula-
D X 2 X (E + 3)
15
in which formula the factor-
(a) D represents the salary which at the time of his or her vacation of office was applicable to the office concerned; and
(b) E represents the period in years of his or her period in such office.
(2) A constitutional judge who is not a judge of the Supreme Court and has vacated his or her office in terms of section 10B (2), shall be paid a gratuity calculated in accordance with the formula-
D X 2 X E
7
in which formula the factor-
(a) D represents the salary which at the time of his or her vacation of office was applicable to the office concerned; and
(b) E represents the period of his or her term in such office, which shall be calculated by the year and the month, and fractions of a month shall be taken into account.
(3) The provisions of subsection (7) of section 6 shall apply mutatis mutandis in respect of any gratuity payable in terms of this section.
Amount payable to surviving spouse of constitutional judge
10D. (1) The surviving spouse of a constitutional judge who was not a judge of the Supreme Court and who died before his or her term of office as a constitutional judge has expired, shall be paid an amount equal to the amount of the gratuity which would in terms of section 10C (2) have been payable to such judge had he or she not died but, on the date of his death, vacated his or her office in terms of that section: Provided that the factor E in the formula referred to in section 10C (2) shall be deemed to be not less than 4.
(2) If such constitutional judge is not survived by a spouse, the amount referred to in subsection (1) shall be payable to his or her estate.
Service by constitutional judge who is appointed as a judge
10E. If a constitutional judge is appointed as a judge of the Supreme Court during his or her term of office as a constitutional judge, his or her term of office as a Constitutional judge shall, for the purposes of this Act, be deemed to be active service.]
CHAPTER 4
GENERAL PROVISIONS
(ss 11-18)
Making available of motor vehicles to Constitutional Court judges and judges
11. A motor vehicle owned by the State may, on such conditions as the Minister may determine with the concurrence of the Minister of Transport, be made available to any person who holds office as a Constitutional Court judge or judge in a permanent or acting capacity, whether he or she performs active service or service, for use, in accordance with the conditions so determined, in the course of his or her official functions as well as for his or her private purposes.
Regulations
12. (1) The President may, after consultation by the Minister with the Chief Justice, the President of the [Constitutional Court] Supreme Court of Appeal and the judges president of the respective [divisions] High Courts, make regulations as to-
(a) arrangements regarding administrative recesses;
(b) the periods for which and the circumstances under which and conditions upon which leave of absence may be granted to Constitutional Court judges or acting Constitutional Court judges , judges or acting judges;
(c) the method of transport of such Constitutional Court judges or judges, and of Constitutional Court judges or judges on their discharge from active service or their vacation of office or removal from office, and of Constitutional Court judges or judges in the performance of service in terms of section 7, and of the members of their families and of the effects of Constitutional Court judges or judges or Constitutional Court judges or judges who have been discharged from active service, removed from office or who have vacated their offices or Constitutional Court judges or judges who perform service in terms of section 7 or deceased judges, the amounts to be paid to Constitutional Court judges or judges or acting judges in connection with transport and subsistence, and the circumstances in which any such transport may be provided and any such amounts may be paid;
(d) the amounts which may be paid to acting Constitutional Court judges or acting judges in connection with the maintenance by them of their practices as advocates or attorneys; and
(e) the amounts payable to Constitutional Court judges and judges of the [Appellate Division] Supreme Court of Appeal [and of the Constitutional Court] in connection with their accommodation.
(2) A regulation under subsection (1) may provide that an amount referred to in paragraph (c) or (d) of that subsection shall be calculated either in accordance with a scale or having regard to the expenses actually incurred in connection with the matter concerned.
Administration of Act
13. The Director-General: Justice and Constitutional Development shall, subject to the directions of the Minister, be charged with the general administration of this Act.
Method of payment of salaries
14. Salaries payable under this Act shall be paid monthly from revenue and on such dates and in such manner as the Minister may from time to time determine.
Application of Act
15. (1) The provisions of this Act shall, subject to the provisions of subsection (2), apply to all judges who on the fixed date have in terms of section 10 of the Supreme Court Act, 1959 (Act 59 of 1959), been appointed as judges or who are thereafter thus appointed, and to all Constitutional Court judges who have in terms of the Constitution been thus appointed of the Constitutional Court, Supreme Court of Appeal and High Courts.
[(2) Any person serving as a judge immediately prior to the date of publication of this Act in the Gazette, may within one month after the publication of the first regulations under section 12 or such longer period, but not exceeding three months after that publication, determined in writing by the Minister at the request of a judge, in writing inform the Minister that he elects that this Act shall not apply in respect of him, in which case he shall retire in terms of the Judges' Pensions Act, 1978 (Act 90 of 1978), as that Act existed immediately prior to the repeal thereof by section 17.
(3) Any person referred to in subsection (2) who on the date referred to in that subsection has not yet attained the age of 65 years and has not yet completed 8 years' service as a judge, shall be deemed to have attained that age and to have completed that number of years: Provided that in calculating his pension benefits, only the period during which he actually served as a judge shall be taken into account.]
(4) (a) Any person who retired as a judge in terms of the Judges' Pensions Act, 1978 (Act No. 90 of 1978), and at the commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, receives a pension in terms of the said Judges' Pension Act, 1978, is, from the date of commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, entitled to a salary equal to two thirds of the salary of a judge contemplated in section 2(1) of the Judges' Remuneration and Conditions of Employment Act, 1989, who holds the same or a similar office to that of the retired judge on the date of the latter's retirement from office.
(b) Any surviving spouse of a judge referred to in paragraph (a) who, at the commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, receives a pension in terms of the said Judges' Pensions Act, 1978, is, from the date of commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, entitled to a salary equal to one half of the salary of his or her deceased spouse contemplated in paragraph (a).
16. Amends section 10 of the Supreme Court Act 59 of 1959 by substituting subsection (1).
Repeal of laws
17. The laws mentioned in the Schedule are hereby repealed to the extent set out in the third column thereof.
Application of Judges' Remuneration and Conditions of Employment Act, 1989, and repeal of laws
18. (1) The Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), applies throughout the Republic from the date of commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001.
(2) The Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 27 of 1989)(Bophuthatswana) and Decree No. 19 (Judges' Remuneration and Conditions of Service) of 1990 (Decree No. 19 of 1990), are repealed.
Transitional provisions
19. (1) The Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), applies to all judges, who at the commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, were appointed as judges of a High Court in the former Republics of Transkei, Bophuthatswana, Venda or Ciskei -
(a) in terms of section 174(6) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) (the Constitution);
(b) in terms of section 104(1) of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993) (the Interim Constitution), prior to its repeal by the Constitution,
as well as to all judges who, in terms of section 241(2A) of the Interim Constitution, are deemed to have been appointed to such office in terms of the Interim Constitution.
(2) (a) Any active service or service referred to in -
(i) section 1 of the Judges' Remuneration and Conditions of Employment Act, 1989, of the former Republic of Bophuthatswana; or
(ii) section 1 of Decree No. 19 (Judges' Remuneration and Conditions of Service) of 1990, of the former Republic of Transkei,
performed by a judge referred to in subsection (1) prior to the commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, is, for the purposes of the Judges' Remuneration and Conditions of Employment Act, 1989, deemed to be active service or service as contemplated in section 1(1) of the latter Act.
(b) For the purposes of section 1(1) of the Judges' Remuneration and Conditions of Employment Act, 1989, the words "service as judge" in section 1(1), preceding paragraph (a) thereof, are construed to include service performed by-
(i) a judge of the Republic of South Africa, prior to the commencement of the Interim Constitution, who was seconded to serve as a judge of a High Court in any of the former Republics of Transkei, Bophuthatswana, Venda or Ciskei, while he or she was so seconded and so served; or
(ii) a judge in the former South West Africa at the request of the South African Government and who, at the commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, holds office as a judge of a High Court.
(3) Section 4 of Decree No. 19 (Judges' Remuneration and Conditions of Service) of 1990 (Decree No. 19 of 1990)(Transkei) continues to apply to any person to whom it applied at the date of commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, as if it had not been repealed.
(4) The remuneration and conditions of employment applicable immediately before the commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, in respect of any former Chief Justice of South Africa who, at the commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, was discharged from active service, are not affected by the amendments pertaining to the offices of Chief Justice of South Africa and the President of the Constitutional Court in terms of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, and continue to apply as if the said amendments had not been enacted.
(5) Any service performed by a Constitutional Court judge who is not a judge contemplated in section 174(5) of the Constitution before the commencement of the Judges' Remuneration and Conditions of Employment Amendment Act, 2001, is recognised as active service for purposes of the Judges' Remuneration and Conditions of Employment Act, 1989.
Short title and commencement
20. This Act shall be called the Judges' Remuneration and Conditions of Employment Amendment Act, [1989] 2001, [and shall be deemed to have come into operation on 1 April 1989].