REPUBLIC OF SOUTH AFRICA
JUDICIAL OFFICERS (CONDITIONS OF SERVICE) AMENDMENT BILL
--------------------------------
(As presented by the Portfolio Committee on Justice and Constitutional Development (National Assembly) after consideration of the Judicial Officers Amendment
Bill [B 72—2001] (The English text is the official text of the Bill)
---------------------------------
(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)
[B ...—2003]
_____________________________________________________________________
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
______ Words underlined with a solid line indicate insertions in existing enactments.
___________________________________________________________________
B I L L
To amend the Magistrates Act, 1990, so as to further regulate the salaries of magistrates; to amend the Independent Commission for the Remuneration of Public Office-bearers Act, 1997, so as to extend the definition of "office-bearer" to include judges and magistrates and to extend the functions of the Independent Commission for the Remuneration of Public Office-bearers; to amend the Public Finance Management Act, 1999, in order to add the salaries and allowances paid to magistrates to Schedule 5 thereof; to amend the Judges' Remuneration and Conditions of Employment Act, 2001, so as to further regulate the salaries of judges, and to bring the provisions relating to benefits accruing to surviving spouses of judges in line with a decision of the Constitutional Court; and to provide for matters incidental thereto.
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—
Amendment of section 1 of Act 90 of 1993, as amended by section 8 of Act 35 of 1996
1. Section 1 of the Magistrates Act, 1993, is amended by the substitution for the definition of "salary" of the following definition:
"'salary' means the annual salary and allowance, if any, payable to a magistrate as contemplated in section 12;".
Amendment of section 12 of Act 90 of 1993, as amended by section 4 of Act 18 of 1996, section 8 of Act 35 of 1996, section 19 of Act 104 of 1996 and section 35 of Act 47 of 1997
2. Section 12 of the Magistrates Act, 1993, is amended—
(a) by the substitution for paragraph (a) of subsection (1) of the following paragraph:
"(a) Subject to the provisions of this section, any person occupying the office of magistrate, including a magistrate in an acting or temporary capacity, shall, in respect of that office, in addition to the amounts referred to in section 16, be paid a salary in accordance with the scale determined from time to time for his or her rank and grade by the [Minister] President by [notice] proclamation in the Gazette [in consultation with the Commission and with the concurrence of the Minister of Finance], as contemplated in subsection (8). ";
(b) by the deletion of subsections (3) and (4);
(c) by the substitution for subsection (5) of the following subsection:
"(5) The amount of any salary payable in terms of subsection (1), shall be paid [from moneys appropriated by Parliament for that purpose] out of the National Revenue Fund as contemplated in section 213 of the Constitution.";
(d) by the substitution for subsection (6) of the following subsection:
"(6) The salary payable to a magistrate shall not be reduced [except by an Act of Parliament: Provided that a disapproval contemplated in subsection (4)(b) shall, for the purposes of this subsection, not be deemed to result in a reduction of such salary]."; and
(e) by the addition after subsection (7) of the following subsection:
"(8) (a) Magistrates are entitled to such salaries, allowances or benefits as may be determined by the President from time to time by proclamation 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).
(b) The Commission referred to in paragraph (a) must, when investigating or considering the salaries, allowances or benefits of magistrates, take the following factors into consideration:
(i) The role, status, duties, functions and responsibilities of magistrates;
(ii) the affordability of different levels of remuneration of public office-bearers;
(iii) current principles and levels of remuneration in society generally;
(iv) inflationary increases; and
(v) any other factor which, in the opinion of the said Commission, is relevant.".
Amendment of section 1 of Act 92 of 1997
3. Section 1 of the Independent Commission for the Remuneration of Public
Office-bearers Act, 1997, is amended by the substitution for the definition of "office-bearer" of the following definition:
"'office-bearer' means—
(a) any member of the Cabinet, any Deputy Minister, any member of the National Assembly, any permanent delegate to the National Council of Provinces, any member of the [Council] National House of Traditional Leaders, any member of any provincial house of traditional leaders or any traditional leader;
(b) any member of the Executive Council of a province, any member of any provincial legislature or any member of any Municipal Council of any category or type of municipality; and
(c) any person holding the office of—
(i) Constitutional Court judge or a judge as defined in section 1 of the Judges' Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001); and
(ii) magistrate who is appointed under section 9 of the Magistrates' Courts Act, 1944 (Act No.32 of 1944), read with section 10 of the Magistrates' Act,1993 (Act No. 90 of 1993), and includes a magistrate in an acting or temporary capacity.".
Amendment of section 4 of Act 92 of 1997
4. Section 4 of the Independent Commission for the Remuneration of Public
Office-bearers Act, 1997, is amended by the substitution for paragraph (a) of subsection (1) of the following paragraph:
"(a) that person is an office-bearer as defined in paragraphs (a), (b) or (c)(ii) of the definition of 'office-bearer' in section 1;".
Amendment of section 8 of Act 92 of 1997
5. Section 8 of the Independent Commission for the Remuneration of Public
Office-bearers Act, 1997, is amended by the substitution for subsections (3) and (4) of the following subsections:
"(3) The Commission may conduct or cause to be conducted such research or obtain such information from the Secretary to Parliament, the secretary to any provincial legislature, the secretary to the [Council] National House of Traditional Leaders, the secretary to any provincial house of traditional leaders, the chief executive officer of any municipality, the secretary to the Judicial Service Commission, the secretary to the Magistrates' Commission or any [office-bearer] functionary or body as may be necessary for the performance of the functions of the Commission under this Act, section 219 of the Constitution or any other law.
(3A) Whenever the Commission performs any function in terms of this Act relating to the salary, allowances and benefits of any office-bearer as defined—
(a) in paragraph (c)(i) of the definition of 'office-bearer' in section 1, it must have regard to the provisions of the Judges' Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001), and in particular to section 2 of that Act; or
(b) in paragraph (c)(ii) of the definition of 'office-bearer' in section 1, it must have regard to the provisions of the Magistrates Act, 1993 (Act No. 90 of 1993), and in particular to section 12 of that Act.
(3B) If any member of the Commission is an office-bearer as defined in paragraph (c)(i) of the definition of 'office-bearer' in section 1, that member must refrain from participating in any of the Commission's deliberations relating to the salary, allowances and benefits of any office-bearer as defined in paragraph (c) of the said definition.
(4) The Commission shall publish annually in the Gazette recommendations concerning—
(a) the salary, allowances and benefits of any office-bearer as defined in [paragraph] paragraphs (a) and (c) of the definition of 'office-bearer' in section 1;
(b) the upper limits of the salary, allowances or benefits of any office-bearer as defined in paragraph (b) of the definition of 'office-bearer' in section 1; and
(c) the resources which are necessary to enable an office-bearer as defined in paragraphs (a) and (b) of the definition of 'office-bearer' in section 1 to perform the office-bearer's functions effectively.".
Amendment of Schedule 5 to Act 1 of 1999
6. Schedule 5 to the Public Finance Management Act, 1999, is amended by the addition of the following item:
"4. Magistrates Act, 1993 (Act No. 90 of 1993) (covering salaries and allowances of magistrates in terms of section 12).".
Amendment of section 1 of Act 47 of 2001
7. Section 1 of the Judges' Remuneration and Conditions of Employment Act, 2001, is amended—
(a) by the insertion in subsection (1) after the definition of "Minister" of the following definition:
"'partner' means a person with whom an unmarried Constitutional Court judge or judge was, at the time of his or her death, engaged in a permanent heterosexual or same-sex life partnership—
(a) in which the Constitutional Court judge or judge and the person concerned have undertaken reciprocal duties of support; and
(b) which is, for the purposes of this Act, registered as such with the Director-General: Justice and Constitutional Development in accordance with the regulations made under section 13;
(b) by the deletion in subsection (1) of the definition of "salary"; and
(c) by the insertion in subsection (1) after the definition of "service" of the following definition:
"'spouse' means a person to whom a Constitutional Court judge or judge was legally married at the time of his or her death;".
Substitution of section 2 of Act 47 of 2001
8. The following section is substituted for section 2 of the Judges' Remuneration and Conditions of Employment Act, 2001:
"[Annual salary] Remuneration of Constitutional Court judges and judges
2. (1) Any person who holds office as a Constitutional Court judge or as a judge, whether in an acting or permanent capacity, shall in respect thereof, in addition to the amounts referred to in section 13 [and an allowance at the rate of R3 500 per annum], be paid—
(a) an annual salary [at a rate] and such allowances or benefits as may be determined by the President, from time to time, by proclamation 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
(b) an allowance at the rate of R3 500 per annum, which allowance shall not be taxable, unless Parliament expressly provides otherwise.
(2) (a) A proclamation in terms of subsection (1)(a) may be issued with effect from a date which may not be earlier than one year prior to the date of the proclamation.
(b) The Commission referred to in subsection (1)(a) must, when investigating or considering the salaries, allowances or benefits of judges, take the following factors into consideration:
(i) The role, status, duties, functions and responsibilities of judges;
(ii) the affordability of different levels of remuneration of public office-bearers;
(iii) current principles and levels of remuneration in society generally;
(iv) inflationary increases; and
(v) any other factor which, in the opinion of the said Commission, is relevant.
[(3) (a) A copy of a proclamation issued under subsection (1) shall be submitted to Parliament within 14 days after publication thereof.
(b) If Parliament rejects such proclamation or any provision thereof, such proclamation or provision shall thereafter cease to be of force and effect to the extent to which it was so rejected but without prejudice to the validity of anything done in terms of such proclamation up to the date upon which it so ceased to be of force and effect, or to any right, privilege, obligation or liability acquired, accrued or incurred as at the said date under and by virtue of such proclamation.
(4) The allowance payable in terms of subsection (1) shall not be taxable, unless Parliament expressly provides otherwise.]
(5) [The amount of the annual salary and allowance payable in terms of] Any amount contemplated in subsection (1), shall be paid as a direct charge against the National Revenue Fund.
(6) No Constitutional Court judge or judge may, 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 Constitutional Court judge or judge.".
Substitution of sections 9 and 10 of Act 47 of 2001
9. The following sections are substituted for sections 9 and 10 of the Judges' Remuneration and Conditions of Employment Act, 2001:
"Amount payable to surviving spouse or partner of Constitutional Court judge and judge
9. (1) The surviving spouse or partner 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 or partner 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; or
(b) in the case of a surviving spouse or partner 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 in terms of section 5 if he or she was discharged from active service in terms of section 3(1)(a) or (2)(a) on the date of his or her death:
Provided that if the Constitutional Court judge or judge is survived by more than one spouse, the amount envisaged in paragraph (a) or (b) shall be divided pro rata between the spouses concerned.
(2) The amount payable to the surviving spouse or partner 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 or partner.
Gratuity payable to surviving spouse or partner of Constitutional Court judge and judge
10. 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 or partner, be payable to such surviving spouse or partner, in addition to any amount payable to that spouse or partner in terms of section 9; or
(b) if such Constitutional Court judge or judge is not survived by a spouse or partner, 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: Provided that if the Constitutional Court judge or judge is survived by more than one spouse, the gratuity calculated in terms of this section shall be divided pro rata between the spouses concerned.".
Amendment of section 11 of Act 47 of 2001
10. Section 11 of the Judges' Remuneration and Conditions of Employment Act, 2001 is amended by the substitution for subsection (3) of the following subsection:
"(7) The surviving spouse or partner of a Constitutional Court judge or judge referred to in subsection (2) 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 Constitutional Court judge or judge in terms of subsection (3)(a) or (5)(a), which amount shall be payable until the death of such spouse or partner: Provided that if the Constitutional Court judge or judge is survived by more than one spouse, the amount concerned shall be divided pro rata between the spouses concerned.".
Amendment of section 13 of Act 47 of 2001
11. Section 13 of the Judges' Remuneration and Conditions of Employment Act, 2001 is amended by the addition in subsection (1) of the following paragraph:
"(cA) the registration and de-registration of not more than one person as a partner of a Constitutional Court judge or a judge with the Director-General: Justice and Constitutional Development;".
Transitional provision
12. Any salary, allowance or benefit immediately before the commencement of this Act accruing to a magistrate or a judge, is deemed to have been determined by the President in accordance with—
(a) section 12 of the Magistrates Act, 1993 (Act No. 90 of 1993), as amended by this Act; or
(b) section 2 of the Judges' Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001), as amended by this Act,
as the case may be.
Short title and commencement
13. This Act is called the Judicial Officers (Conditions of Service) Amendment Act, 2003, and comes into operation on a date fixed by the President by proclamation in the Gazette.
OPTION IN RESPECT OF MAGISTRATES:
Insertion of section 15A in Act 90 of 1993
X. The following section is inserted in the Magistrates Act, 1993:
"Equal benefits accruing to spouses and partners of magistrates
15A. Any person with whom an unmarried magistrate is engaged in a permanent heterosexual or same-sex life partnership—
(a) in which the magistrate and the person concerned have undertaken reciprocal duties of support; and
(b) which is registered with the Director-General: Justice and Constitutional Development in accordance with the regulations made under section 16,
is for all purposes regarded as the lawfully wedded spouse of that magistrate.".
Amendment of section 16 of Act 90 of 1993, as amended by sections 7 and 8 of Act 35 of 1996, section 19 of Act 104 of 1996 and section 8 of Act 66 of 1998
X. Section 16 of the Magistrates Act, 1993, is amended by the insertion in subsection (1) of the following paragraph:
"(nA) the registration and de-registration of not more than one person as a partner of a magistrate, as envisaged in section 15A, with the Director-General: Justice and Constitutional Development;".