“Judicial officers ought not to be put in a position of having to … engage in negotiations with the executive over their salaries. They are judicial officers, not employees, and cannot and should not resort to industrial action to advance their interests in their conditions of service. That makes them vulnerable to having less attention paid to their legitimate concerns in relation to such matters, than others who can advance their interests through normal bargaining processes open to them”.

2. When determining the remuneration of magistrates, the procedures set out in section 12 of the Magistrates Act must be read together with the provisions of the Commission Act that governs the composition and functioning of the Commission. The procedures that must be followed in determining the remuneration of magistrates can briefly be summarised into the following steps:

· The Commission must in order to investigate and consider the remuneration of magistrates consult with the Minister, the Minister of Finance and the Chief Justice or a person designated by the Chief Justice (section 12(1)(c) of the Magistrates Act).

· When the Commission is deliberating the matter of the remuneration of judges or magistrates and if the Chairperson of the Commission is a Constitutional Court judge or a judge, then he or she must refrain from participating in any of the Commission’s deliberations relating to such remuneration (section 8(3B)(a) read together with section 1(d)(i) and (ii) of the Commission Act).

3. [Publication of the Recommendations of the Commission]

· Section 8(6) of the Commission Act stipulates that in arriving at its recommendations the Commission must take the following factors into account:

“(6)(i) The role, status, duties, functions and responsibilities of the office-bearers concerned;

(ii) the affordability of different levels of remuneration of public office bearers;

(iii) current principles and levels of remuneration, particularly in respect of organs of state, and in society generally;

(iv) inflationary increases;

(v) the availability of resources of the State; and

(vi) any other factor which, in the opinion of the said Commission, is relevant”.

· The recommendations of the Commission must be published in the Gazette at least once a year in respect of each category of office-bearers and must be submitted to Parliament before publication (section 8(5) of the Commission Act).

· In this regard, the Commission’s annual recommendations must be submitted to Parliament before the publication thereof in the Gazette. In other words Parliament only needs to be informed about the Commission’s recommendations and does not at this stage have to approve or disapprove thereof. However, it is at this point that Parliament has, through the Select Committee and the Portfolio Committee, an opportunity to formulate a view on the Commission’s recommendations, which in turn must be relayed to the Executive before the President constructs the notice referred to in section 12(1)(a).

· In this regard it should be noted that while Parliament may have received the Commission’s recommendations before they were published in 2005 (and this we, to date, have not been able to establish), the Commission’s proposals were not referred by the Presiding Officers to the relevant Committees for consideration and report. This may be simply because the Commissions recommendations were not officially relayed to Parliament.

· The publication of the Commission’s recommendations in the Gazette is done in addition with the intention to publicise its findings as widely as possible for public information. The publication of the recommendations of the Commission in the Gazette should not be confused with the publication of the President’s notice in the Gazette to determine the salaries, allowances or benefits of magistrates.

· The Commission then makes recommendations to the President for his or her consideration as to the salaries, allowances and benefits magistrates are entitled to following the Commission’s investigation (section 12(1)(a)(i) of the Magistrates Act).

4. Publication of section 12(1)(a) notice

· Section 12(1)(a)(i) and (ii) read together with subsection (3) of the Magistrates Act provide that the President determines the salaries, allowances or benefits that magistrates are entitled to from time to time by notice in the Gazette, after taking into consideration the recommendations of the Commission, and after such notice has been submitted to Parliament for approval ( i.e. before publication thereof in the Gazette).

· Parliament must by resolution either approve the notice, whether in whole or in part, or disapprove the notice (section 12(3)(b)(i) and (ii) of the Magistrates Act). The notice has to be submitted to Parliament to afford Parliament an opportunity to comment before any determination may be published in the Gazette.

· The President may determine different categories of salaries and salary scales in respect of different categories of magistrates (section 12(1)(b) of the Magistrates Act).

· The remuneration payable to magistrates shall be paid out of the National Revenue Fund as contemplated in section 213 of the Constitution read with section 12(4) of the Magistrates Act.

C. Absence of budgetary allocation to defray proposed new motor vehicle allowances for magistrates and senior magistrates

1. Any reservations the Committees may have had, with the introduction of the proposed new motor vehicle allowances for magistrates and senior magistrates, were outweighed by the individual and collective weight afforded three factors that are relevant in regard to the approval of such allowances. Firstly, the President of the Republic of South Africa indicated in Notice 46 of 2005 and the attached Schedule that he favoured the granting of such an allowance to magistrates and senior magistrates. Secondly, the Minister of Finance indicated his preparedness to appropriate the budget allocation of approximately R157million to defray the expenditure related to the proposed new motor vehicle allowances for magistrates and senior magistrates, in terms of section 213(2)(b) of the Constitution of the Republic of South Africa, read with section 12(4) of the Magistrates Act. Thirdly, the relevant government departments are in the process of developing a remunerative structure based on parity and synergy to negate the adverse consequences of magistrates’ salaries and benefits being raised to disparate levels, with the consequent destabilising effects this has on other institutions of justice, especially the National Prosecuting Authority.

2. All factors, especially the above three, having been considered, the Committees accordingly recommended that both Houses of Parliament approve the proposed new motor vehicle allowances for magistrates and senior magistrates, as contained in Notice 46 of 2005, as it appears in the Government Gazette of 24 August 2005, and that the costs thereof be defrayed in terms of section 213(2)(b) of the Constitution of the Republic of South Africa, read with section 12(4) of the Magistrates Act .

3. All other proposals recommended in Notice 46 of 2002 have been properly budgeted for and the adoption thereof presented no problem, and was accordingly recommended.

4. On Wednesday, 7 September 2005, the National Assembly passed a resolution, which read:

That the House approves the draft notice and the schedule received from the Presidency determining the rate at which salaries and allowances are payable to the magistrates annually, with effect from 1 April 2005, in terms of section 12(1)(a) of the Magistrates Act (act No 90 of 1993) as amended by section 3 of the Judicial Officers (Amendment of Conditions of Service) Act (Act No 28 of 2003).

Notice 46 of 2005 appeared in the Government Gazette dated 24 August 2005 and is attached hereto for ease of reference (Marked Annexure 05 Mag Rem 5).

5. The National Council of Provinces however referred the matter to the Select Committee on Security and Constitutional Affairs for deliberation. Joint hearings were held on 18 October 2005, and interim reports were tabled in both houses on 16 November 2005. (Marked Annexture 05 Mag Rem 17 and 19). The Houses required that a final report be tabled detailing the outcomes and recommendations in relation to legislative and procedural matters relating to the determination of salary levels for magistrates; the absence of a budgetary allocation to defray the proposed new motor vehicle allowances for senior magistrates and magistrates; the development of policy measures to deal with the implications arising from the extension of motor vehicle allowances to senior magistrates and magistrates; and any other matter relevent to or emanating from the said hearings.

D. CONCLUSIONS AND RECOMMENDATIONS

In making our recommendations the Committees have considered that the determination of recommendations relating to magistrates’ (and judges’) salaries is a relatively new exercise for the Commission. Like all new institutions and processes, there are opportunities to develop and learn collectively from short-comings and challenges. Most developing democracies have at some time or another faced such and sometimes worse institutional challenges, and it is out of corrective measures implemented within constitutional mechanisms that strong and enduring practices of good governance and institutions have developed. Consequently, after careful consideration of all the written and oral submissions placed before the Portfolio Committee and the Select Committee, on the recommendations contained in Notice 46 of 2005, including the implications of the proposed new motor vehicle allowance for magistrates and senior magistrates, as recommended by the Commission; and -

(i) despite any procedural shortcomings that may have occurred in relation to the Commissions work;

(ii) the absence of a budgetary allocation of R157 million to the Department of Justice and Constitutional Development, to defray the new proposed motor vehicle allowance to entry level magistrates, magistrates and senior magistrates; and

(iii) because the relevant Government Departments are considering proposals to create a salary regime which ensures parity and synergy between the salary packages of legally qualified professionals working for the State,

the Committees make the recommendations hereunder to ensure that the problems pertaining to the work of the Commission do not recurr.

RECOMMENDATIONS

1. The Independent Commission for the Remuneration of Public Office Bearers:

1.1 The Commission must strictly comply with the letter and spirit of the legislation and regulations applicable to it when considering recommendations relating to the remuneration of judges and magistrates. The following legal prescripts must strictly be complied with in future:

1.2 The letter and spirit of section 8(3B) (a) and (b) of the Commission Act replicated below, must be strictly adhered to and complied with by the Commission and its Chairperson:

“If the Chairperson of the Commission is an office bearer as defined in para (d)(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 remuneration of any office-bearer as defined in paragraph(d) of the said definition

(b) Any member of the Commission who may directly or indirectly derive any benefit from the acceptance by the President of any recommendations by the Commission, must refrain from participating in any of the Commissions deliberations relating to such recommendations.”

1.3 When the Commission considers recommendations relating to the remuneration of:

(i) judges, it must have regard to the provisions of the Judges Remuneration and Conditions of Employment Act (Act no. 47 of 2001); and

(ii) magistrates, it must have regard to the provisions of the Magistrates Act and the Commission’s Act in particular section 8;

1.4 In formulating recommendations on the remuneration of magistrates, the Commission must have regard to the levels of remuneration of similarly qualified individuals in the public and private sectors in accordance with the provisions of the Commission Act, particularly the prescripts of section 8(6)(iii);

1.5 In terms of section 8(5) of the Commission Act, read with sections 12(1)(a)(ii) and 12(3) of the Magistrates Act, the recommendations of the Commission relating to the remuneration of magistrates must be submitted to Parliament before publication thereof.

1.6 The Commission must in future make recommendations bearing in the mind the availability of resources within the budget framework, as provided for in the Estimate of National Expenditure;(i.e: see section 8(6)(v) )

1.7 The Commission should receive a single submission on behalf of the magistracy from the Chief Justice or a person designated by the Chief Justice relating to recommendations in respect of the remuneration of magistrates, in accordance with section 12(1)(c)(ii), read with section 8(3)of the Magistrates Act, and should not consult with or receive submissions from individual or groups of magistrates relating to the remuneration of magistrates, as seems to have become the practice; considering the injunction of the Van Rooyen case that collective bargaining practices should be discouraged at this level;

1.8 The Commission must meaningfully consult with the Ministers of Finance and Justice and Constitutional Development in terms of section 12 (1)(c)(i) of the Magistrates Act, when considering recommendations in respect of the remuneration of magistrates. The process of consultation should be made more formal and all substantive interactions should be through written communications ;

1.9 When consulting the Ministers as referred to in paragraph 1.8 above, the Commission must do so with a view to reaching consensus on the recommendations relating to the determination of the remuneration of magistrates;

1.10 The Commission’s recommendations to the President should reflect all the relevant views/submissions received relating to the recommendations in respect of the remuneration of magistrates, especially when any or both of the above Ministers disagree with any aspect of the recommendations made by the Commission;

1.11 The Commission must construct a system for formulating recommendations on the remuneration of magistrates that is objectively understood within an overall matrix or framework of remuneration and benefits applicable to other members of the Judiciary and other similarly qualified professionals in the employ of the State.

2. THE OFFICE OF THE CHIEF JUSTICE

It is recommended that the office of the Chief Justice must devise an internal forum within the Judiciary aimed at facilitating a single submission to the Commission relating to the remuneration of judges and magistrates, as indicated in paragraph 2 of the recommendations pertaining to the Commission, above.

3. PARLIAMENT

It is also recommended that any proposal in terms of section 8(5) of the Commission Act and any notice referred to in Section 12(1)(a)(i) of the Magistrates Act, submitted to Parliament, must be referred by the Presiding Officers to the Portfolio Committee and the Select Committee jointly, for consideration and report. The report and recommendations of the Committees must thereafter be tabled for adoption in the relevant Houses. Thereafter, Parliament’s recommendations or comments must immediately be forwarded to the President. Only after these processes have been followed, and upon approval by both Houses of Parliament, should the final determination be published in the Government Gazette.

4. GENERAL

Although not relevant to this enquiry, any of the procedural shortcomings that are pertinent to the development of recommendations relating to the remuneration of judges should be immediately reviewed by the relevant institutions.

5. Policy Measures: The development or adoption of policy measures arising from the expansion of travel allowances to magistrates previously excluded

Magistrates are appointed generally at the point that they have acquired at least 5 years post university experience. In their submission to the Committees the NPA pointed out that a prosecutor with at least five years post university experience currently earned R139 383 compared to the R313 738 per annum for a similarly qualified magistrate (i.e. a trainee magistrate, without the present proposed salary packages having been taken into account). This amounts to a differential of R174 355, in salaries for lawyers who are equally qualified and experienced. The newly approved allowance for entry level magistrates will increase the already significant salary gap between entry level magistrates and senior prosecutors with five years and more years experience, by approximately R70 000.00. This will have the likely effect of further significantly exacerbating an already existing atmosphere of instability in institutions administering justice. In fact, according to the NPA, they lose between 30 and 40 such experienced prosecutors annually to the magistracy. Considering the further 40 new magistrates posts created in 2005, the prosecuting authority stands to loose a significant number of experienced prosecutors during this period.

The Commission in its written submission reported that “it is in the process of conducting a major review of public office bearer remuneration, and intends making recommendations for the implementation of an integrated fair and transparent total cost to employer remuneration structure for all office bearers”(page 2, paragraph 2). The Department of Justice reported that it has just completed a framework for an integrated remuneration dispensation for its legally qualified professionals. This process is aimed at addressing the historical inequities existing in the current system, and introducing parity and synergy. It was further reported that a similar exercise is currently being undertaken by the DPSA in regard to personnel performing legal functions throughout the public sector. While these developments are to be welcomed, it is clear that if these processes are not integrated or synergized, we will once again face a situation where disparate salary packages have to be implemented for similarly qualified legal professionals in the public domain.

The Committees thus recommend that:

5.1 The Department of Justice and Constitutional Development, Treasury and Department of Public Service and Administration (and where necessary, the Commission) should work together to design a remuneration framework/ or matrix that will ensure parity and synergy between the salary packages of similarly qualified legal professionals working for the State. In this manner, eradicating or at the very least minimising the further destabilisation of institutions administering justice through personnel movements chasing after higher salaries, sometimes even in the same Department.

5.2 The Department of Justice and Constitutional Development and Treasury having been engaged in a process that is aimed at developing a comprehensive remunerative structure based on parity for legal professionals in the Justice sector, must table their proposals and implementation plan, with Parliament, by 1 September 2006.

5.3 The Department of Justice and Constitutional Development must, urgently, table in Parliament amendments to the regulations for the official travel of all magistrates operating within clusters, in order to prevent potential abuse of claims relating to S&T’s, accommodation and travel allowances of the nature that was disclosed to the Committees during the hearings. In particular, to examine the legality and amend the regulations, if necessary, of the further payments of allowances or benefits to magistrates, for travel purposes, after 1 April 2005, outside the motor vehicle allowances, which are now being approved for all magistrates, backdated to 1 April 2005. Such regulations must be tabled in Parliament, by 1 September 2006.

5.4 Review present legislation

It is recommended that the relevant pieces of legislation considered in this report should be reviewed in accordance with the findings and recommendations of this report, with the objective of simplifying and clarifying the procedure. The review should include a mechanism allowing the proposals of the President to be revised and resubmitted to Parliament should Parliament disapprove the notice in terms of section 12(3)(b)(ii) of the Magistrates Act.

6. Engendering professionalism in the Magistracy

During the time that it has taken to convene the parliamentary hearings the Committees have been disturbed at the behaviour of some magistrates who have in written and oral form criticised Parliament’s processes and even questioned the constitutionality of Parliament’s role. Generally, Parliament should not be above reproach, but when these criticisms are voiced by magistrates in an effort to enhance their personal circumstances by advocating for higher salaries in stark contrast to the prescripts laid down by the Constitutional Court in the Van Rooyen judgment, these reproaches have the distinct flavour of unabashed avarice.

Taken to its extreme the media covered stories of certain magistrates absenting themselves from their courts during this time, on the pretext of being under stress due to the possibility of the new motor vehicle allowances not being approved. This, if true was a lightly veiled attempt to pressurise MPs to approve the new salary dispensation. The Committees were also made aware of meetings convened in court buildings ostensibly to organise in protest against any potential negative outcome of the Parliamentary process.

In matters concerning the Judiciary, the Committees remain guided by the principles and guidelines determined by the Constitutional Court, especially in the Van Rooyen case.

The actions of some magistrates, in contravention of the principles in the Van Rooyen judgment, are unbecoming of judicial officers and have brought the Judiciary into disrepute.

The Committees accordingly recommend that the Magistrates’ Commission:

6.1 Conducts a full investigation into:

(i) absenteeism from work without valid reason; including absenteeism due to alleged stress (particularly in the area of the Eastern Cape) or any “go slow” or related action on the part of any affected magistrate or senior magistrate; and

(ii) any other type of conduct or action by any magistrate or senior magistrate, which ostensibly relates to the approval by Parliament of the new salary regime amounting to behaviour unbecoming of a judicial officer,

between the period 13 September 2005 and 17 November 2005.

6.2 Submits a Report by 01 December 2006 on the individual magistrates concerned, identifying the disciplinary measures adopted or proposed to be adopted in each instance, including relevant medical certificates for each magistrate absent from work for stress or stress related illnesses during the period 13 September to 17 November 2005 .

Conclusion

The Committees express the hope that the report provides guidance and assistance to all the role-players concerned in our mutual efforts to develop and build our State Institutions. It is hoped that all criticism levelled are received in this spirit and that our democratic state continues to flourish in the wake of the constructive deliberations and engagement.

Report to be considered.

[1] VAN ROOYEN AND OTHERS v THE STATE AND OTHERS (GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA INTERVENING) 2002 (5) SA 246 (CC).