COMMENTARY ON THE DRAFT JUDICIAL OFFICERS AMENDMENT BILL, 2001
by Graham Travers, Regional Magistrate, Pretoria
ON BEHALF OF THE EXECUTIVE MANAGEMENT AND JUDICIAL INDEPENDENCE COMMITTEES OF THE ASSOCIATION OF REGIONAL MAGISTRATES OF SOUTH AFRICA (ARMSA)
- This is the commentary of the Judicial Independence Committee of ARMSA on the Draft Judicial Officers Amendment Bill, 2001 (hereinafter the "draft bill").
- We do not propose to comment in detail on those provisions of the draft bill that deal with issues relating to judges of the superior courts.
- The issues concern the judicial officers in the lower courts (for convenience collectively referred to as "magistrates") relate principally to -
- the appointment of magistrates in both permanent, acting and temporary capacities;
- the qualifications required for appointment as a magistrate of a regional division (also referred to as a "regional magistrate"), in an acting, temporary and a permanent capacity;
- the proposal to bring both judges and magistrates with in the ambit of the Remuneration of Public Office Bearers Act, 1998 (Act 20 of 1998) (hereinafter the "Remuneration Act") for purposes of determining their remuneration.
- the proposal to have the remuneration of magistrates paid from revenue and not as at present from monies appropriated by Parliament.
- These proposed changes necessitate consequential changes to various acts of parliament.
- All references to clauses are references to clauses in the draft bill.
AMENDMENTS RELATING TO TTHE APPOINTMENT OF MAGISTRATES UNDER THE MAGISTRATES' COURTS ACT
AD CLAUSES 1(a) AND 1(b)
(See paragraph 3.1 of the Explanatory Memorandum)
- These clauses propose to substitute section 9(1)(b), 9(3), 9(4) of the Magistrates Courts Act, 1944 (Act 32 of 1944) (hereinafter the "Magistrates' Courts Act") and section 10 of the Magistrates Act, 1993 (Act 90 of 1993) hereinafter the "Magistrates Act".
SECTION 9(1)(b), 9(3) AND 9(4) OF THE MAGISTRATES' COURTS ACT
- Section 9(1)(b) deals with the requirements for appointment as a magistrate of a regional division ("regional magistrate").
- Presently in terms of section 9(1)(b) only a person holding an LLB degree, "the Public Service Senior Law Examination or an examination deemed by the Minister [of Justice] to be equivalent or superior to the said examination" qualifies for appointment as a regional magistrate. In addition the Magistrate's Commission must have informed the Minister that the candidate is suitable for appointment as an magistrate of a regional division before he or she may be appointed in a permanent capacity as a regional magistrate.
- By virtue of the first proviso to section 9(3) the same qualifications are required in respect of an acting appointment but no "recommendation" by the Magistrate's Commission is required.
- In terms of section 9(4) any "competent" person may be appointed to act in a temporary capacity as a regional magistrate.
- The term "competent" is not defined but it can be inferred that such a person would have to have some legal qualification albeit not of the same level as that required by sections 9(1)(b) and 9(3) of the Magistrates Courts Act.
- Clause 1(a) of the draft bill will delete the requirement of a specified legal qualification insofar as regional magistrates in a permanent capacity are concerned. Clause 1(b) will do the same insofar as a regional magistrate appointed in an acting capacity is concerned, by deleting the first proviso to section 9(3) of the Magistrates Courts Act.
- The word competent is replaced by the words "fit and proper" in section 9(4).
THE RATIONALE FOR THE PROPOSED AMENDMENTS
- Paragraph 25 of the Explanatory Memorandum to the Draft Bill states that "the opportunity has been used to amend sections 9 and 10 of the Magistrates' Courts Act, 1994 to bring the appointment requirements of magistrates into line with those relating to judges, as required by the Constitution, namely that magistrates must be "fit and proper" persons to be appointed as such.
- Our constitution has always been premised on the doctrine of trias politica. Under the English common law system of constitutional law the superior courts are a requirement of any constitutional dispensation as are the legislature and the executive council.
- Under the pre-1994 constitution the judicature comprised the Supreme Court of South Africa being the third branch of the State, the judicial branch. The judicial authority of the Republic was vested in those superior courts.
- Under the common law only a body having certain characteristics can be regarded as a "court of law".
- Although the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) (the "Constitution") is the "supreme law of the Republic", the common law, insofar as it is not in conflict with the Constitution, remains in place. If, therefore, there are common law requirements to hold the office of "judge", these remain.
- In Minister of the Interior and Another v Harris and Another and Others, 1952(4) SA 769(A), the Appellate Division had to decide the constitutionality of the High Court of Parliament Act 1952 (Act 35 of 1952). At that time there were certain "entrenched provisions of the South Africa Act 1909, one of which related to the procedure for removing the "Cape coloured" voters from the common voters roll.
- The South Africa Act provided that the entrenched provisions could only be repealed using a special procedure. The superior courts could decide upon the validity of such legislation and declare invalid any legislation that had not been enacted by the proper procedure.
- The High Court of Parliament Act created a new "court of law", with jurisdiction to review a decision of the Appellate Division declaring an act of Parliament invalid, upon application by a minister of state.
- The members of this "court" were the members of the Parliament of the (then) Union, comprising the House of Assembly and the Senate.
- The Appellate Division unanimously held that this body was not a proper "court of law" as envisaged by the South Africa Act that could be exercise judicial power. In reality it was Parliament operating under another name.
- In the course of deciding whether the "High Court of Parliament" was in reality a "Court of Law", as envisaged by the South Africa Act the five judges (Centlivres, C.J. and Greenberg, Schreiner, Van den Heever and Hoexter, J.J.A.) In their separate concurring judgments considered what the primary characteristics of a "Court of Law" were. Each found that the High Court of parliament did not exhibit these characteristics, as envisaged by section 152 of the South Africa Act.
- Schreiner, J.A. at page 788 of Harris stated:
"The Superior Courts of South Africa have at least for many generations had characteristics which, rooted in the world's experience, are calculated to ensure, within the limits of human frailty, the efficient and honest administration of justice according to law. Our Courts are manned by full-time Judges trained in the law, who are outside party politics and have no personal interest in the cases which come before them, whose tenure of office and emoluments are protected by law and whose independence is a major source of the security and well-being of the State". (My emphasis)
THE REQUIREMENTS OF THE CONSTITUTION, 1996
- The primary requirement for appointment as a judicial officer (encompassing both judges and magistrates) is provided for in section 174(1) of the Constitution:
"Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer."
- Section 174(2) of the constitution provides:
"The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed."
- Article 14(1) of the International Covenant on Civil and Political Rights ("ICCPR"), to which South Africa is a signatory, provides -
"All persons are equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, every one shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law..."
- The Human Rights Committee of the United Nations is the body set-up under the ICCPR to monitor the compliance of the terms thereof by States parties. In General Comments 13, dealing with Article 14 of the ICCPR, adopted by the Human Rights Committee at its 516th meeting (twenty-first session, held on 12 April 1984), the following comment appears -
"In particular, States parties should specify the relevant constitutional and legislative texts which provide for the establishment of the courts and ensure that they are independent, impartial and competent, in particular with the regard to the manner in which judges are appointed, the qualifications for appointment, and the duration of their terms of office; the conditions governing promotion, transfer and cessation of their functions and the actual independence of the judiciary from the executive branch and the legislature."
- The United Nations Basic Principles on the Independence of the Judiciary (1985) states in paragraph 10 -
"Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law."
THE TERM "APPROPRIATELY QUALIFIED"
- Section 174(1) of the Constitution does not define the term "appropriately qualified". It is not unusual for a constitutional instrument to provide only a framework, allowing the legislature to fill in the detail by legislation.
- This is precisely what the relevant sections of the Magistrates Courts Act do at present: they define the term "appropriately qualified".
- If the minimum qualifications for appointment as regional magistrate are not provided for in law, they will effectively be left to the discretion of the appointing authority.
- The qualification standard will then vary according to the policy of the appointing authority.
- It is essential for the maintenance of confidence in the system of justice that there be certainty as to the minimum qualifications required for appointment as a regional magistrate.
- The legislature should lay down the standard for both judges and magistrates.
- To effectively delegate to the appointing authority the power to determine the standard may amount to an unconstitutional delegation of law making power to a body other than the legislature. As was explained by Taft, C.J. in Hampton & Co v United States, 276 US 394 (1928) at 407 -
"The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance off the law. The first cannot be done; to the latter no valid objection can be made."
(See generally Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others 1995 (1) BCLR 1289 (CC) at paragraphs 52ff).
THE TERM "FIT AND PROPER PERSON"
- Before an "appropriately qualified" person can be appointed as a judicial officer, section 174(1) of the Constitution requires that he or she be a "fit and proper" person.
- The phrase "fit and proper person" is not defined but the same term is used in the legislation regulating admission to the attorneys and advocates professions. In that regard a body of jurisprudence has been built-up over a number of decades.
- In Prince v The President of the Law Society of the Cape of Good Hope and others, 2000 (7) BCLR 823 (2000 (3) SA 845) (SCA) the Supreme Court of Appeal, had to decide the meaning of the words "fit and proper" in section 54A(b)(i) of the Attorneys Act 1979 (Act 53 of 1979) (which relates to candidate attorneys).
- In doing so the Court (per Hefer JA) (at paragraph 17) cited with approval the remarks of the (since retired) Chief Justice of Zimbabwe Gubbay C J in In re Chikweche, 1995(4) BCLR 333 (25) at 540; 1995 (4) SA 284 (ZSC) at 291 H-J:
"Construed in context, the words 'a fit and proper person' all is in my view to the personal qualities of an applicant that he is a person of honesty and reliability. S v Mkhise; S v Mosia; S v Jones; S v Le Roux; 1988(2) SA 868 (A) 875 D."
- Earlier in the same paragraph in Prince, supra Hefer JA (writing for the majority) stated that the persons (to be admitted as candidate attorneys) ought not only to be "honest and reliable, but 'fit and proper' persons in every respect".
- The term "a fit and proper person" refers in part to the personal qualities of the applicant for judicial office.
- In a separate concurring judgment Mthiyane AJA (as he then was) wrote, "other criteria are just important." Prince supra at paragraph 2. He then proceeds to discuss the importance of the taking of the oath of allegiance.
- He refers to the remarks of Ramsbottom J. in Incorporated Law Society, Transvaal v Mandela, 1954(3) SA 102 (T), where the learned Judge stated at 109A:
"Every attorney in the Union must take an oath of allegiance when he is admitted to practice. It is an implied condition of his right to continue in practice that he shall continue to give true allegiance. If he repudiates his allegiance he breaches a condition of his right to practice. In addition the violation of an oath, solemnly taken, by an attorney undoubtedly reflects upon his fitness to remain in the profession."
- Section 174(8) provides that "before judicial officers begin to perform their functions, they must take an oath or affirm, in accordance with Schedule 2, that they will uphold and protect the Constitution."
- The oath for judicial officers Schedule 2 provides (in its relevant part) that as a judicial officer he or she "will be faithful to the Republic, will uphold and protect the Constitution and the human rights entrenched in it, ..."
- Mthiyane AJA goes on (at paragraphs  and ) to state:
"... in 51(c) of the Constitution the 'Republic of South Africa' is described as a sovereign, democratic state whose foundational values are the constitution and the rule of law.
In this context the Republic of South Africa is, in my view, not to be seen as a lifeless or immutable institution divorced from its system of laws and legal principles operating within the constitution."
- It follows that the term "fit and proper person" refers to the personal qualities of the person, including that person's honesty, integrity and reliability, and also the person's loyalty and faithfulness to the Republic of South Africa, including the value system enshrined in the Constitution.
- To provide as the draft bill does, only for the requirement of "a fit and proper person" does not, we submit, meet the requirements laid down in the Constitution.
THE "FAIR TRIAL" RIGHTS OF AN ACCUSED PERSON
- The requirements of section 174(1) of the Constitution must be read together with the rights of accused person enshrined in section 35(3) of the Constitution.
- Section 35(3)(c) of the Constitution provides that "[e]very accused person has a right to a fair trial, which includes the right ... to a public trial before an ordinary court".
- In Freedom of Expression Institute and Others v President of the Ordinary Court Marshal NO and Others, 1999(3) BCLR 261(C), the Cape High Court had to decide whether the then existing system of courts martial met the standard of an "ordinary court". Hlophe ADJP (as he then was) held that the courts martial, as they were then constituted, did not confirm to the concept of a "ordinary court" as envisaged in section 35(3)(c) of the Constitution.
- At that time nothing in law prevented all the members of such a court martial from all being lay persons, although the practice was that at least one member had to be legally trained. This was despite the fact that such a court martial had the power to deprive a convicted accused of his liberty.
- The court declared the relevant provisions of the Defence Act, 1957 and the Military Discipline Code (Schedule One to the Act) to be unconstitutional.
- Subsequently the law relating to military courts was completely revised and enacted as the Military Discipline Supplementary Measures Act, 1999 (Act 16 of 1999) (the "Military Discipline Act").
- The Military Discipline Act creates two levels of Military Court each presided over by a different grade of military judge and each with its own level of penal jurisdiction.
- The Court of a Senior Military Judge has jurisdiction to "try any person subject to the [Military Discipline] Code for any offence other than murder, treason, rape or culpable homicide committed within the Republic and may an conviction sentence the offender to any punishment referred to in section 12." Section 12(1)(a) of the Military Discipline Act provides for the imposition of a sentence of imprisonment, subject to certain restrictions.
- Section 9(1)(a) of the Military Discipline Act provides that a Senior Military Judge shall be "an officer of a rank not below that of colonel or its equivalent and with not less than five years experience as a practising advocate or attorney of the High Court of South Africa, or five years experience in the administration of criminal justice of military justice.
- The Court of a Military Judge has jurisdiction to "try any person subject to the Code, other than an officer of field or higher rank, for any offence, other than murder, treason, rape or culpable homicide, on an offence under section 4 or 5 of the Code, and may on conviction sentence the offender to any punishment referred to in section 12. This is subject to a maximum period of imprisonment of two years".
- Another type of military court is a disciplinary hearing at unit level, which is presided over by a military officer, usually the unit commander. This tribunal may not impose a sentence of imprisonment.
- In both the case of a Court of a Military Judge and of a Senior Military Judge, appropriate legal qualifications are prescribed in conformity with our Constitution, International and Regional instruments.
- It would be surprising indeed if the presiding judicial officer of a court that has a limited jurisdiction (over persons, offences and punishments) is required to have appropriate qualifications and experience prescribed by law while a court of a regional division, which has jurisdiction to try all offences except treason and to impose imprisonment of fifteen years in the normal course requires no qualifications at all.
- This does not mean that the requirement of a Bachelor of Laws as a qualification for appointment as a regional magistrate is not in need of reform.
- A purely academic qualification does not make an appointee appropriately qualified for appointment as a regional magistrate. The academic qualification should be combined with suitable experience. This is a reality what "appropriately qualified" means.
- We submit that a combination of academic training and appropriate experience should be laid down as the minimum requirement for appointment as a magistrate (with a higher minimum requirement for appointment as a regional magistrate).
- In the case of appointment as a regional magistrate an academic qualification of lower standard than a Bachelor of Laws would require a higher minimum level of experience.
- A minimum period of experience as a practising advocate or attorney of the High Court of South Africa could undoubtedly be regarded as an appropriate qualification. In the case of appointment as a regional magistrate a longer period of such experience should be a minimum requirement (say five years).
- However, we submit that in the case of magistrates and regional magistrates a minimum academic qualification should be laid down in statute.
SECTIONS 9(3) AND 9(4) OF THE MAGISTRATES' COURTS ACT
- As demonstrated above the term "fit and proper" refer only to the personal qualities and loyalty of the person; term does not refer to whether the person is appropriately qualified. The Constitution itself distinguishes in section 174(1) between "appropriately qualified" and "fit and proper".
- It is important that as with permanent appointees, persons considered for appointment as acting or temporary magistrates should be competent as well as fit and proper.
- Sections 9(3) and 9(4) have different requirements in respect of acting and temporary regional magistrates.
- Section 9(3), which deals with acting appointments, requires the same qualifications as for a permanent appointment. This seems sensible, as the person may be required to act in office for more than just a short time.
- The retention of the existing requirement is supported with the option of adding the requirement of the person being a "fit and proper person".
- In this regard it is important to note that section 175 of the Constitution, which deals with the appointment of acting judges, does not require the appointee to be a "fit and proper person".
- Section 9(4) deals with temporary appointments, that is appointees who are additional to the establishment. These are sometimes referred to as supernumerary appointments.
- The existing section does not require an appointee to possess the academic requirements for a permanent or acting appointment.
- In this regard we prefer the Cape Provincial Division decision in the matter of The State v William Krause (Unreported, Case No. A282/2001, delivered 13 July 2001, Coram: Griesel and Desai JJ) over that of Lawrence Piedt v The State  JOL 8020 (E) (Leach J, Negpen J concurring).
- While we acknowledge the very real considerations concerning temporary appointments cited in the Krause judgment. We submit that consideration should be given to distinguishing between for instance to postpone matters at an outlying station and supernumerary appointment where a stricter approach should be adopted.
- In the former case the likelihood of any prejudice to any of the parties is remote and it does not matter that the appointee have the same qualifications as the permanent or acting appointee.
- In the latter case where a person is appointed in a temporary period of time additional to the establishment for instance to alleviate overloaded court rolls then it be comes important that the appointee is suitably qualified.
- It may be that a less stringent qualification than that required for a permanent or acting appointment may be sufficient. In my view in the case of a "supernumerary" appointment (as referred to above) the appointee should at least hold permanent appointment as a magistrate with some experience or be admitted as an advocate or attorney in South Africa with suitable levels of experience.
- The proposed amendment would permit a totally unqualified person to be appointed as either a magistrate or a regional magistrate and cannot be supported. Such a person could conceivably be a "fit and proper person" for purposes of appointment.
- The proposal to delete words "either generally or in a particular matter" can similarly not be supported.
- Ostensibly this proposal would aim to correct a criticism of the existing provision by Judge Southwood in Van Rooyen and Others v The state and Others, 2001 (9) BCLR 915 (T). What the learned Judge objected to is not that the temporary appointee can be restricted in his or her functions but who can impose that restriction.
- There can be no objection if the head of the court concerned (President of a Regional Division or head of office or of a cluster) restricts the functions of a temporary appointee. Such a head is likely to do so for legal reasons and not out of political considerations.
- In respect of both sections 9(3) and 9(4) the practice of empowering an officer in the Department of Justice, who is a public servant, to appoint an acting or temporary magistrate or regional magistrate is perpetuated.
- This is constitutionally unacceptable. Judicial officers are not public servants. They are not even employees of the executive. They are officers of the Constitution equivalent in status to members of the legislature and members of the executive council. (See Hannah v Minister of Justice of Namibia. 2000 (4) SA 940 (NmLC) and the cases cited there).
- Officers of the Department of Justice are employees of the executive branch of the State. It is objectionable that they be permitted to appoint even temporary or acting magistrates. The authority of "an officer in the Department of Justice and Constitutional Development" to appoint magistrates in terms of section 9(3) and 9(4) should be deleted.
- It is submitted, with respect, that not even the Minister, acting alone, should be permitted to appoint acting or temporary magistrates. If such a power is retained then such an appointment should take place at least after consultation with the head of the court concerned but preferably in consultation with such head.
- In the place of permitting an officer in the Department to make an acting or temporary appointment consideration should be given to permitting the Secretary of the Magistrates Commission to make such appointments acting in consultation with the head of the court concerned. Such appointments could also be subject to directions given to the Secretary by the Magistrates Commission.
THE REPEAL OF SECTION 9(5) OF THE MAGISTRATES' COURTS ACT
AD CLAUSE 1(c)
- Clause 1(c) deletes section 9(5) of the Magistrates Courts Act.
- The repeal of section 9(5) of the Magistrates' Courts Act, which deals with the remuneration of magistrates appointed in an acting or temporary capacity, is very much to be welcomed.
- The repeal of section 9(5) and the amendment of section 12(1)(a) of the Magistrates Act, which regulates the salaries of permanently appointed magistrates, means that the remuneration of acting or temporary magistrates will also regulated by the section 12(1)(a).
- This will remedy the current situation whereby magistrates appointed in an acting or temporary capacity do not enjoy basic financial security.
AD CLAUSE 2
SECTION 10 OF THE MAGISTRATE'S COURTS ACT
- The proposal to delete the specified legal qualifications for appointment as a magistrate from legislation cannot be supported for reasons already stated. The minimum academic qualification and levels of appropriate experience should be laid down by statute.
- The proposed substituted section 10 of the Magistrate's Courts Act also conflicts with section 10 of the Magistrates Act, in that section 10 (as proposed) of the former Act requires the Minister to act on the advice of the Magistrates Commission whereas section 10 of the latter Act requires the Minister to act after consultation with the Magistrates Commission.
- The proposed section 10 is made "[s]ubject to the provisions the Magistrates Act, 1993 (Act No. 90 of 1993)" and therefore Magistrates Act (including section 10) will prevail (See S v Marwane, 1982 (3) SA 717 (AD); S v Mhlungu and Others, 1995 (7) BCLR 793 (1995 (3) SA 867) (CC)).
- The words "acting on the advice of" have essentially the same meaning as acting in consultation with, which means that both decision-makers must reach consensus. The words acting after consultation with require the primary decision-maker (in this case the Minister) to attempt in good faith to reach consensus with the secondary decision-maker (the Magistrates Commission) but ultimately the view of the primary decision-maker will prevail.
- We submit that section 10 of the Magistrates Act should rather be substituted so as to read:
"The President shall, acting on the advice of the Magistrates Commission, appoint magistrates in respect of the lower courts under and subject to the Magistrate's Courts Act."
- The reason that the President as head of State should appoint magistrates is because, we submit, all judicial officers are officers of the Constitution and have the same status as members of the legislature and members of the executive council.
- In All India Judges Association and Others v Union of India and Others, (1993) 4 SCC 288, the Indian Supreme Court stated as follows:
"The judicial service is not service in the sense of 'employment'. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what it is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the Ministers, the legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly the legislators are different from the legislative staff so also the Judges from the judicial staff. The party is between the political executive, the legislators and the Judges and not between the Judges and the administrative executive, the Judges, at whatever level, they may be, represent the State and its authority unlike the administrative executive and the other services. The members services, therefore cannot be placed on a par with the members of the members of the judiciary either constitutionally or functionally".
- This very question came pertinently before the Supreme Court of Canada in the recent decision in Re Therrien 2001 SCC 35 (Unreported, judgment delivered on 7 June 2001) ("Therrien"), where the Court had to decide whether a provision in the Quebec Charter dealing with the rights of employees applied to the dismissal of a provincial court judge.
- In holding that a judicial office was clearly not an "employment" for the purposes of section 18.2 of the Quebec Charter the Supreme Court of Canada (per ) stated (at paragraph 141):
"However, the Court of Appeal held that judicial office was not an employment within the meaning intended by s. 18.2, by reason of the history of the judiciary and the nature, characteristics and requirements of the office. These findings in fact reflect the constitutional reality of judicial office, which requires that judges not be subject to any bureaucratic higher authority, or be a party to any relationship of subordination such as is traditionally characteristic of the employer-employee relationship, other than in respect of certain administrative aspects of the office such as workload allocation and scheduling of court sittings and certain duties associated with the enforcement of judicial ethics, which are assigned to the chief judge: see s. 96 C.J.A. and Ruffo, supra, at para. 59. In addition, although judges perform their functions for remuneration, their financial security is one of the three essential conditions of judicial independence for the purposes of s. 11(d) of the Canadian Charter and the Preamble to the Constitution Act, 1867, which require that the right to salary and pension be established by law and that any salary reduction, increase or freeze be the subject of a specific process allowing avoidance of any possibility of real or perceived interference by the Executive: Valente, supra, at p. 704, and Reference re Remuneration of Judges of the Provincial Court, supra, at paras. 131 and 287. Finally, the hiring and firing process for judges is substantially different from the normal procedure used for most employments. As the case at bar illustrates, the appointment and removal of members of the judiciary are governed by a series of constitutional requirements that are intended to protect their security of tenure: Valente, at p. 698."
- The provision in law that the Minister of Justice appoints magistrates is a remnant of the pre-constitutional era when magistrates were in fact and in law members of the public service and employees of the executive.
- It was therefore acceptable for the Minister to have appointed magistrates (just as the Minister of Home Affairs appointed immigration officers) because they were officers in his Department.
- Under the current constitutional dispensation the judicial authority is reposed in all courts. In the pre-constitutional era (pre 1994) it was reposed only in the superior courts.
- In pre 1994 era there was no supreme constitution. Although the constitution was premised on the doctrine of the separation of powers this could be deviated from.
- Under the present dispensation there is a relatively strict separation of powers, at least between the legislative and executive branches of the state on the one hand, and the judicial branch on the other (See SAAPIL
- The Hoexter Commission in its Fifth and Final Report (1983) (RP 78/1983), Part A, Volume II Part IV paragraph 5.16(c) (at page 326), recommended that "all judicial officers in the lower courts … be appointed and dismissed by the State President on the recommendation of the Advisory boards that are to be established."
- This would accord with the constitutional status of magistrates, as referred to above. The Minister and/ or the Secretary to the Magistrates Commission, acting in consultation with the head of the court concerned, could still be empowered to appoint acting or temporary magistrates.
- Recognition is in fact given to this principle by the proposal to place both judges and magistrates under the Remuneration Act).
AMENDMENTS TO THE SUPREME COURT ACT, 1959
AD CLAUSE 3
(Section 11 of the Supreme Court Act)
- This section is to be repealed and re-enacted as a section 10L of the Judges. Remuneration and Conditions of Employment Act, 1989 (Act 88 of 1989) (the "Judges Remuneration Act")
AMENDMENTS TO THE JUDGES REMUNERATION AND CONDITIONS OF EMPLOYMENT COURT ACT, 1989
AD CLAUSES 4 TO 19
- These clauses amend various sections of the Judges Remuneration Act, and insert a chapter creating a complaints mechanism in respect of judges. No further comment will be made.
AMENDMENTS TO THE MAGISTRATES ACT, 1993
AD CLAUSE 20
(Amendment of the definition of "salary" in the Magistrates Act, 1993)
- Clause 20 proposes to bring the definition of "salary" in section 1 of the Magistrates Act into line with the definition of salary in section 1(1) of the Judges Remuneration Act .
- The definition of "salary" in the Judges Remuneration Act should be read together with section 11 of the same act, which provides for a vehicle owned by the State be made available to a judge for use for both public and private purposes.
- Certain ranks of magistrates already receive a motor car financing benefit. This could be extended to other ranks in the future. The amendment to the existing legislation should make it clear that the "allowances" contemplated in the Remuneration Act includes the motor car benefit or allowance.
- The pensions of judges are payable out of revenue. In this regard they are unique in that the State makes full provision for their pensions.
- Magistrates on the other hand are currently members of the Government Employees Pension Fund (GEPF). At present the State contributes to the pension fund in the ratio of two to one. In effect this means that the State contributes 15% of the gross pensionable salary of a magistrate to the fund.
- If magistrates are placed under the Remuneration Act, these contributions will need to be guaranteed by law. This is part of the "basic financial security" of a magistrate, which is one of the elements of the principle of judicial independence.
- In terms of the proposed section 4A (to be inserted into the Remuneration Act) the President will determine the "salaries and allowances" of judges and magistrates.
- The term "salary" is not defined in the Remuneration Act but the term "allowances" is defined as "any allowance, including out of pocket expenses, which forms part of an office bearer's conditions of service, other than a salary and benefits.
- The "benefits" of office bearers refer to the pension and medical and benefits of office bearers and are dealt with by sections 8 and 9 of the Remuneration Act respectively.
- I submit that the Magistrates Act should provide for the State's contribution to the GEPF to be guaranteed and for the payment of the State's contribution to the medical aid to continue. If no provision were made for these benefits it would amount to a reduction in the current salary of magistrates.
AD CLAUSE 21(a)
(Substitution of Section 12(1)(a) of the Magistrates Act, 1993)
- This amendment is supported in principle. However, the section as currently worded does not guarantee pension and medical aid benefits (contributions) presently by payable by State.
- In order to afford guaranteed pension and medical aid benefits to magistrates I propose that it be specifically provided for in law. The current section 12(2), which is to be deleted by clause 21( ), should instead be substituted for the following:
"(2) A person occupying the office of magistrate in a permanent capacity shall be entitled to the benefits as contemplated in sections 8(2) and 9(2) of the Remuneration of Public Office Bearers Act, 1998 (Act 20 of 1998)"
- The current heading of section 12 of the Magistrates Act should be substituted by the heading "Remuneration of Magistrates" to bring it into line with section 2 of the Judges Remuneration Act.
AD CLAUSE 21(b)
(Deletion of sections 12(2), (3) and (4) of the Magistrates Act, 1993)
- The repeal of these subsections, which effectively equate magistrates with public servants, is fully supported.
AD CLAUSE 21(c)
(Substitution of Section 12(5) of the Magistrates Act, 1993)
- The amendment to section 12(5) is fully supported.
AD CLAUSE 21(d)
(Substitution of Section 12(6) of the Magistrates Act, 1993)
- The amendment to section 12(6) does not guarantee the current pension and medical aid benefits of magistrates. This is because the definition of "salary" in section 1(1) of the Magistrates Act does not include pension or medical aid contributions payable by the State. This will be a violation of the principle of judicial independence.
- The amended section 12(6) will also not guarantee the salary of an acting or temporary magistrate because the definition of "magistrate" in section 1(1) of the Magistrate Act expressly excludes "any person occupying that office in an acting or temporary capacity".
- Section 176(3) of the Constitution, which deals with the remuneration of judges provides that "[t]he salaries, allowances and benefits of judges may not be reduced."
- Similarly section 219(5) of the Constitution, which deals with legislation regarding the remuneration of persons holding public office, provides (in its relevant part) that "[n]ational legislation must establish frameworks for determining the salaries, allowances and benefits of judges…"
- I propose that section 12(6) should be amended to read:
"The salary payable to a person who holds office as a magistrate, whether in a permanent, acting or temporary capacity, and the benefits payable to a person who holds office as magistrate in a permanent capacity, shall not be reduced"
AMENDMENTS TO THE INDEPENDENT COMMISSION FOR THE REMUNERATION OF PUBLIC OFFICE BEARERS ACT, 1997
AD CLAUSE 22
- The amendment of the definition of "office bearer" is supported.
AD CLAUSE 23
- This amendment is supported.
AMENDMENTS TO THE REMUNERATION OF PUBLIC OFFICE BEARERS ACT, 1998
AD CLAUSE 24
(Insertion of a definition of "judge" and "magistrate" in the Act)
- This amendment is in principle supported. However magistrates are excluded from the sections dealing with pension (section 8) and medical aid (Section 9) benefits at present. As stated above it will be necessary to rectify this.
- If it is the intention to exclude persons holding the office of magistrate in an acting or temporary capacity from the ambit of sections 8 (pension benefits) and 9 (medical aid benefits) then the definition of "magistrate" proposed to be inserted should be changed to read
"(c) any person holding the office of—
- 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 90 of 1993) and for the purposes of section 4A includes a magistrate appointed in an acting or temporary capacity."
- If it is intended that medical aid benefits apply to magistrates appointed in an acting or temporary capacity then the definition should be changed to also include a reference to section 9.
AD CLAUSE 25
(Insertion of section 4A dealing with the determination of the salaries and allowances of judges and magistrates)
- This amendment is supported.
AD CLAUSE 26
(Section 8 of the Remuneration of Public Office Bearers Act, 1998 - pension benefits)
- Section 8 of the Remuneration Act should not apply to a judge because pension benefits are already provided for in the Judges Remuneration Act.
- The section should apply to magistrates, except where the magistrate has been brought back from retirement or is appointed from outside the judicial branch (service) solely in an acting or temporary capacity, for instance an attorney or an advocate who is given an acting or temporary appointment.
AD CLAUSE 27
(Section 9 of the Remuneration of Public Office Bearers Act, 1998 - medical aid benefits)
- No provision seems to be made in law for the State's contribution to a medical aid fund in respect of a magistrate. Presently the State contributes a portion of the monthly subscribed up to a prescribed maximum.
- In order for future contributions to be guaranteed by law in respect of magistrates section 9 should at least be made applicable to a magistrate (if not a judge as well). The inclusion of person holding these offices in an acting or temporary capacity should be dealt with specifically.
AD CLAUSE 28
- The proposed amendment is supported in principle but permanently appointed judges and magistrates should be included in the "frame work for determining pension and medical benefits of office bearers."
- I submit the relevant portion of the long title should be changed to read "to provide for a framework for determining pension and medical aid benefits of office bearers, other than judges or magistrates who hold office [solely] in an acting or temporary capacity".
AMENDMENT TO SCHEDULE 5 OF THE PUBLIC FINANCE MANAGEMENT ACT, 1999
AD CLAUSE 29
(Schedule 5 of the Public Finance Management Act, 1999)
- This amendment is supported.
TRANSITIONAL AND OTHER PROVISIONS
AD CLAUSE 30
- This amendment relates solely to judges, but is supported.
AD CLAUSE 31
- This clause is supported.
CHAIRPERSON: ASSOCIATION OF REGIONAL MAGISTRATES OF SOUTH AFRICA
CHAIRPERSON: JUDICIAL INDEPENDENCE COMMITTEE: ARMSA
7 SEPTEMBER 2001