HEARING ON THE IMPLICATIONS OF THE RECOMMENDATIONS OF THE INDEPENDENT COMMISSION ON THE REMUNERATION OF PUBLIC OFFICE BEARERS (ICRFPOB): PROPOSED NEW SALARY PACKAGES FOR THE MAGISTRACY, ESPECIALLY THE INTRODUCTION OF CAR ALLOWANCES FOR ENTRY LEVEL MAGISTRATES
1. The National Treasury would like to thank the Portfolio Committee on Justice and Constitutional Development for the opportunity to voice its views regarding the determination of the salaries for magistrates, in particular, the provision for the car allowance. The National Treasury has been invited to address the following issues:
a. The resultant salary packages of magistrates;
b. The financial implications of this dispensation;
c. Uniform remuneration dispensation for legally practitioners in the Justice
Sector and the broader Public service; and
d. The implications for capacity development and retention of skills in the Justice Sector and rankings within the Magistracy.
2. The Independent Commission on the Remuneration of Political Office Bearers has requested that magistrates be provided with a car allowance benefit. The National Treasury was approached for comment in conjunction with the request for the concurrence of the Minister of Finance on this matter.
3. The National Treasury was not opposed to the principle of providing magistrates with a car allowances benefit, but was opposed to the manner in which the benefit was to be implemented, given the possible negative implications that the determination could cause to the remuneration structures of the Justice sector, for the following reasons:
a. Firstly, the determination would increase the salary packages of magistrates by approximately 20% without revising their responsibilities.
b. The objective for the provision for the car allowance is to enable mobility between service delivery points. Therefore, by simply occupying a particular position, does not justify the provision for the benefit, but the nature of the work and job responsibilities should determine the eligibility of the provision.
c. As an alternative, the National Treasury would have requested that Commission consider the introduction of the notch system in the salaries of the magistrates. This would compensate experience, performance and level of responsibility. An option which is also compatible to the pay progression and career pathing systems that are being implemented in the public service. These systems would assist in eliminating significant jumps that currently exist in the remuneration packages between the judiciary and legal practitioners. It is therefore essential to ensure a determination that is fair, comparable and equitable to similar legal personnel in the public service.
d. Secondly, the determination would exacerbate the current remuneration pressures faced by the Department of Justice, as there is no integrated remuneration framework for legal practitioners in Justice.
e. Lastly, government is in the process of phasing out the tax benefit of the car allowance. This will include public servants; therefore making the recommendation to not be relevant in the long term.
4. In light of the above, the National Treasury proposed that the car allowance benefit be provided to magistrates, but should be included in their current salary packages, which should remain aligned and be equivalent to the Middle Management Service packages applicable to prosecutors. The proposal would have significant improvements in the remuneration of magistrates, as they will be able to structure their salaries according to their needs.
5. Moreover, the said magistrates' salaries fall within the broader salary levels 11 and 12 applicable to public servants.
6. This proposal was not supported by Commission. The Commission states that the Minister of Finance has concurred with the provision of the car allowance according to their stipulated conditions. This is not entirely correct. The Minister of Finance did not concur with the determination for reasons mentioned above.
7. The National Treasury is of the opinion that the commission did not consider other options that could be implemented, other than the car allowance benefit. Amongst possible options, there is the travel allowance option.
8. With regard to the integrated remuneration dispensation for legally qualified professions in Justice, the Department for Justice and Constitutional Development stated that they have compiled such a framework. This is according to the Ministerial letter that the Treasury received confirming the availability of such a framework. We have requested the Department of Justice to avail the framework to the Treasury for comment. However, the objective of the framework, should be to minimise these ad hoc salary adjustments in Justice that often impacts negatively on other professionals working in the sector. The framework needs to be presented and discussed at this Portfolio Committee.
9. Finally, with regard to the implications for capacity development and retention of skills in the sector, the integrated remuneration dispensation should be geared to deal with this issue. The current proposed dispensation for magistrates wilt create some negative impact to other appointments in the sector, especially the prosecutors. In this case, Justice is expecting a substantial number of prosecutors to apply for magistrates' posts or resign. As a result, the Treasury is pressurised to equalise or adjust the salaries of prosecutors. This problem will arise each time the Commission adjust the salaries of magistrates by a higher proportion than the prosecutors, whose salaries are determined by the bargaining council. Therefore, an integrated remuneration dispensation is essential and should be geared up to deal with such challenges.
10. The National Treasury recommends the following:
a. The salary packages of magistrates should be considered within a broad remuneration dispensation for legally qualified professionals in Justice and the broad public service. This would entail adjusting salaries in relation to responsibilities,
b. Request that the proposal for integrated remuneration framework/ dispensation for legal practitioners in Justice be submitted to the Portfolio Committee for consideration and comment;
c. The portfolio committee should refer to section 12.1(c) of the Judicial Officers Act (2003) when making recommendations, which states that the commission must consult with the Minister and the cabinet member responsible for finance. It is also essential that in future, the said persons' views should be expressly stated in the final submission to the President;
d. That Commission considers section 11.6(ii) of Judicial Officers Act (2003), which states that when making recommendations, the commission must take into account, the affordability of remuneration of public office bearers.
e. The act also stipulates that the commission take into account the current principles and levels of remuneration, particularly in respect of organs of state, and in society generally.
f. Furthermore, the act stipulates the commission take into account the available resources of the state. In light of this, the relevant department should be consulted to confirm the availability of funding to implement any measures with financial implications;
g. The Treasury advises the Portfolio Committee that the funding required for the implementation of this dispensation, is a large increase in the baseline estimates for the compensation of magistrates. The determination does not qualify as unavoidable and unforeseeable expenditure in the adjustment budget process. Therefore, funding for this will have to be provided for in the departmental budget or follow the budget process; and h. In future, the Commission should make the recommendations within the budget framework, as provided for in the Estimate of National Expenditure.