13 October 2005

From : N Ulrich: Secretary

To : Ms Chohan : Chairperson Portfolio Committee on Justice and Constitutional Development


Your letter of 07 October 2005 and subsequent telephone conversation with our Mr Ulrich of 12 October 2005 refer.

1. We confirm your advice that the Portfolio Committee hearing will take place on Tuesday 18 October 2005 at 09h30, in Cape Town, and that the writer will attend the hearing with a watching brief on behalf of this Commission. We also record your view that it was undesirable to invite an independent Commission, such as this, to appear before your Committee.

2. Section 8(4) of the Independent Commission for the Remuneration of Public Office Bearers Act, No 92 of 1997, (the Commission Act) provides that the Commission shall publish annually in the Gazette its recommendations on the salaries or upper limits of salaries, as the case may be, benefits and allowances for the various office bearers. The relevant recommendations for the 2005/2006 financial year were published in Government Gazette No.27770 of 08 July 2005~ after it was duly presented to both the President and Parliament on 29 June 2005. An explanatory memorandum, a copy of which is attached hereto for ease of reference, accompanied the Commission's recommendations to the President and Parliament and sets out the broad determinants of the Commission's recommendations.

3. In particular, you are referred to paragraphs 6, 7 and 8 of the explanatory memorandum, setting out in very broad terms the justification for the Commission's recommendations in respect of a motor vehicle allowance for senior magistrates and magistrates.

4. For the sake of completeness we also record that the Commission 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 public office bearers, as defined in relevant legislation. It has already completed much of its research in this regard. One of the objectives of this major review is to identify and remove the many current inequities that characterise the current remuneration structure applicable to public office bearers One of these inequities is that senior magistrates and magistrates are the only categories of judicial office bearers that do not currently have the benefit of a motor vehicle allowance. All political office bearers, who are as much public office bearers as magistrates, all judges, all regional court magistrates and chief magistrates presently receive a motor vehicle allowance. This simply means that there is a clear disparity within the ranks of public office bearers and within the narrower class of judicial officers and within the sub-class of magistrates. The Commission has taken the view that this differentiation is unjustified.

5. The Commission welcomes the opportunity to advise Parliament of its deliberations which led to its recommendations of 29 June 2005 relating to motor vehicle allowances of magistrates and senior magistrates. We start by setting out the relevant submission and discussions, which served before the Commission ahead of its recommendations.

6. The Commission met with the Minister of Finance on 26 May 2005, in Cape Town, to discuss issues pertaining to its intended recommendations. The Minister agreed with the Commission's contention that there were many inequities in the current remuneration structure of public office bearers, and that it was imperative for the Commission to seek every opportunity to make recommendations directed at eliminating the inequities. Whilst the issue of the motor vehicle allowance of magistrates was raised, the Minister did not express direct support for the proposal.

7. As required by legislation, The Commission met with the Minister of Justice and Constitutional Development on 30 May 2005, in Pretoria. The primary purpose of the meeting was to consult with the Minister on the Commission's intended recommendations on the remuneration of judicial officers bearers. The issue of extending motor vehicle allowances to magistrates and senior magistrates was directly raised. The Minister supported the principle that car allowances should be extended to all magistrates.

However, the Minister qualified her support by raising the concern that prosecutors might feel offended if magistrates only were to receive substantially increased remunerative benefits. The Minister explained that she feared that such a grievance on the part of prosecutors might lead to resignation by some prosecutors.

The Commission drew the Minister's attention to its statutory mandate, which does not extend to prosecutors but does include magistrates, who are judicial office bearers. The Minister properly, in our view, proposed that in order to meet the possible dissatisfaction by prosecutors, she would set up a working group to consider the remuneration of the magistracy in relation to prosecutors. The Commission pledged its support for the planned working group.

As a follow- up on the pledge, on 12 August 2005, the Commission addressed a letter to the Minister confirming its willingness to participate in such a proposed co-operative group, as soon as the group is established. We are yet to receive a response in this regard.

8. However, it is important to note that the Commission did not understand the Minister's concern over prosecutors to mean that magistrates should not be granted motor vehicle allowances. In fact the Minister properly urged the Commission to be bold in making its recommendations and that it must act independently and without fear or favour.

9. In the second instance, the Commission received numerous written submissions from individual magistrates and from the organized representatives of all categories of magistrates with regard to the need for an allocation of a motor vehicle allowances. Additionally, in Johannesburg on 22 June 2005, the Commission met with a large number of magistrates from different levels in the magistracy. During this meeting of more than two hours, the Commission heard submissions on why motor vehicle allowance should be extended to the two excluded categories of magistrates. The notion of these allowances was supported unanimously by all magistrates present, which included magistrates from the categories that already enjoy motor vehicle allowances. At the end of the meeting the Commission undertook to consider their submissions and to raise the issues again with the relevant Ministers before making any recommendations.

10. It is suggested respectfully that the Portfolio Committee should consider hearing submissions directly from magistrates on this issue. Their reasoning is cogent and their conviction on their entitlement to the allowance is unwavering.

11. The Commission met with the Chief Justice, and a delegation of Judges1 on 28 June 2005 in Johannesburg, who supported the allocation of motor vehicle allowances to senior magistrates and magistrates unanimously.

12. During the period between 22 and 29 June 2005 the Commission researched and did considerable work on the monetary and budgetary implications of recommending motor vehicle allowances to senior magistrates and magistrates. In particular, it calculated the exact gross monetary value of the recommendations having regard to the numbers of magistrates in each category and the recommended values of each of the respective allowances. The Department of Justice and Constitutional Development vetted the relevant financial values obtained before the Commission proceeded to obtain comments from the respective Ministers regarding these recommendations.

13. Before making its recommendations the Commission directed letters to the Ministers of Finance and of Justice and Constitutional Development with a view to secure their final comments ahead of its intended recommendations relating to the proposed motor vehicle allowances. Copies of the letters are attached for ease of reference.

14. In conclusion, I set out in broad terms the considerations the Commission made in coming to its recommendation to allocate motor vehicle allowances to senior magistrates and magistrates:

(a) The primary factor relates to the independence, impartiality and dignity of the affected judicial office bearers. The Commission considered it completely inappropriate that senior magistrates and magistrates often have to make use of public transport in circumstances where they are extremely vulnerable to parties who may be seriously aggrieved by their judgments.

(b) The second consideration relates to access to justice by all. Historically, the salary packages of magistrates and senior magistrates have never included a car allowance component and are ordinarily inadequate to meet their obvious need for safe transportation from home to work T he absence of safe transportation for magistrates of the affected salary levels is an obvious blight on the proper execution of their judicial function. To make the point, we need not romanticize the importance of judicial function at this level. Suffice it to make the trite observation that access to justice for all is simply not possible without an effective magistracy, which renders the rump of justice services at grassroots level.

(c) The Commission was further advised that state transport was not always available to senior magistrates and magistrates, who often have to travel from their stations to distant courts to perform their duties, which leads to inefficiency in rendering their judicial duties.

(d) Senior magistrates and magistrates are public office bearers whose salaries, benefits and allowances must be determined and regulated by legislation applicable to public office bearers, as defined. Much has still to be done administratively to realize this legislative imperative. It should therefore follow that senior magistrates and magistrates are no longer entitled to make use of available middle management service remuneration structures in the public service. In this regard one would do well to remember that section 12(4) of Act 90 of 1993, as amended, provides that the appropriation of funds for purpose of these allowances shall be paid out of the National Reserve as contemplated in section 213 of the Constitution.

(e) Therefore the Commission is concerned about and is unable to support the apparent comparison made between the positions of public office bearers (which include, amongst others, magistrates) and public service employees (such as prosecutors), in the face of clear statutory distinctions between these groups. Each group is entitled to remunerative equity but within the context of the legislative framework applicable to it.

(f) Magistrates and senior magistrates are the only public office bearers (as legislatively defined) who do not receive a motor vehicle allowance for purposes of executing their public duties. The differentiation is untenable. It is no answer to now say motor vehicle allowances will in time be replaced by a total cost to employer remuneration scheme. When that day comes the magistracy will be regulated like all other public office bearers.

(g) Finally, from the submissions made by magistrates, the Commission has good cause to be concerned about the intensity of dissatisfaction and unhappiness on the part of the affected judicial officers. In the Commission's view this is a grave matter that is worthy of serious and proper consideration by both the President and by Parliament, in evaluating the recommendation of the Commission for the current financial year.

We trust that you will find this brief account in order and that the matter can now be concluded with due haste, in view especially of the unfortunate intensity of the dissatisfaction and unhappiness on the part of the affected judicial officers.

Kindly feel free to contact this Commission at any time should you require any further input or response.

Yours faithfully





1. Besides its annual review, the Commission has formulated long-term objectives The most important of these objectives is to make recommendations to the President for the implementation of an integrated, fair and transparent total cost to employer remuneration structure for all public office bearers, as defined in relevant legislation. The process for the determination of the envisaged remuneration structure entails research followed by reviewing, benchmarking and grading positions of all public office bearers This process affects closely all public office bearers.

It is self evident that the process must enjoy the buy-in of all stakeholders and its outcome must be credible. To this end the Commission has recently completed an extensive consultation with all most stakeholders in the form of representatives of public office bearers.

We regret that the Commission was unable to complete its recommendations before the expiry of the 31 March 2005. We are however confident that the Commission should be able to make its recommendations on the conversion to a total cost to employer remuneration structure by 31 March 2006.

2. In its initial research the Commission has accumulated data, which it trusts will enhance its process towards making recommendations on the ideal remuneration structure for all public office bearers:

2.1 A report on an international comparative study on the remuneration of Political Office Bearers;

2.2 A comparison of the current salary structures with other salary structures, with a view to moving towards an appropriately integrated structure;

2.3 A report and recommendations on a Total Cost to Employer salary system

3. The existing information need to be supplemented before meaningful recommendations can be made for the conversion of the current remuneration system in respect of public office bearers to one consistent with the values of our Constitution informing public governance. To assist it in this task, the Commission has appointed consultants, who will generate a report by not later than 30 November 2005, which, when completed, will bring to the fore the following additional information:

3.1 an analysis of the purpose, duties, responsibilities, powers, activities, nature and scope of all public office bearer posts;

3.2 an analysis of existing conditions of service, salaries, benefits and allowances of all public office bearers;

3.3 benchmarking of all public office bearer positions with comparable public and private sector positions;

3.4 recommendations on the resources necessary to enable each public office bearer to perform his or her functions properly;

3.5 recommendations on an integrated and transparent and equitable remuneration structure for all public office bearers; and

3.6 A comprehensive implementation plan for the conversion to a total cost to employer remuneration structure.

4. It is however important for the Commission to also make annual recommendations regarding the salaries, benefits and allowances of public office bearers, not only to fulfill its statutory obligation but also to ensure the maintenance of an equitable living standard for public office bearers. Recommendations directed at these short term objectives are attached hereto.

5. The Commission considered, amongst other, the following factors in making its recommendations:

5.1 a link between labour costs and inflation was regarded as a sound basis for making salary adjustments;

5.2 the Commission considered the relevant annual and month-on-month CPIX figures, as well as the percentage remuneration increases for executives, mid-management and public office bearers for each year since 2000, and compared those to the results from annual client remuneration surveys conducted by the Commission's consultants;

5.3 month-on-month CPIX for April 2005 was 3.8%. The predicted annual CPIX for 2005 is 4.5%;

5.4 inflation targets for the next 12 months are expected to remain within the target range of 3% to 6%;

5.5 predictions from client remuneration surveys conducted by the Commission's consultants indicate that employees generally expected a 6.7% remuneration increase for the year; and

5.6 while the client remuneration surveys and macro economic indicators suggest an increase of between 4.5 % and 9%, the Commission is of the opinion that its recommendations for increases in remuneration of public office bearers should support the inflation targets of between 3% and 6%.

6. The Commission considered the allocation of motor vehicle allowances to senior magistrates and magistrates to be appropriate in terms of various factors relating to the performance of their duties. In particular the Commission considered it completely inappropriate that senior magistrates and magistrates often have to make use of public transport where they are extremely vulnerable to parties who may be seriously aggrieved by their judgments.

7. The Commission has consulted, as it is statutorily bound to do, with the Ministers of Finance and of Justice and Constitutional Development, as well as with the Chief Justice of South Africa, before compiling its annual recommendations, and has secured their support for the recommendation relating to the proposed motor vehicle allowances.

8. In view of the above the Commission has drafted the attached recommendations, which reflect the following general characteristics:

8.1 A general percentile increase in salaries, allowances and benefits for all public office bearers, of 5.75% per annum; and

8.2 Allocation of motor vehicle allowances to senior magistrates and magistrates, equal to 25% of the amounts of their respective basic salaries, which is in line with the similar allowances in respect of other Public Office Bearers.