Constitutional Amendment Bills: hearings; Judicial Officers Amendment Bill: briefing

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
25 September 2001
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL AND SECOND AMENDMENT BILL: PUBLIC HEARINGS
JUDICIAL OFFICERS AMENDMENT BILL: BRIEFING

Chairperson: Adv J H de Lange

Relevant Documents :
Policy Framework for Municipal Borrowing & Financial Emergencies - Department of Finance
Opinion on the Security for Municipal Debt and the Desirability of a Constitutional Amendment.
Security for Municipal Debt in the Municipal Finance Management Bill: Opinion – Research byTriangle Institute
Municipal Finance Management Bill [available at http://www.treasury.gov.za]

SUMMARY
The Committee dealt mainly with the second Constitutional Amendment Bill and discussed matters relating to municipal borrowing, section 100 and 139 interventions and the size of the Financial and Fiscal Council. These issues all raised considerable debate, but in particular the size of the FFC. Presenters fought for representation of all provinces in the FFC while the FFC was meant to be an independent body where representatives did not strictly represent provinces.

The Committee was then briefed by the Department of Justice on the Judicial Officers Amendment Bill, which seeks to effect a number of technical and substantive changes.

MINUTES
The Constitution of the Republic of South Africa Amendment Bill
Mr Ismail Momoniat: National Treasury, discussed the Constitutional amendments that would affect the Treasury.

Mr Momoniat told the Committee that the Cabinet had approved the proposals currently being considered. The Bill contained both big political issues and smaller policy and technical issues. The big policy issues, consisting of three main headings, would be discussed. These were municipal borrowings, section 100 and 139 interventions and the size of the FFC.

At this point Adv de Lange interjected and asked Mr Momoniat and Mr Zam Titus: Director General, Department of Provincial and Local Government (DLPG), to address the issue of consultation.

Mr Momoniat said that the degree of consultation depended on the period in which the provision had been in existence. In relation to some provisions, section 155 for example, there had been extensive consultation between the Treasury and the relevant bodies. Some sections had come in later and thus there had not been the same amount of consultation, indeed not enough, in relation to these provisions.

Adv de Lange told Mr Momoniat that he had been informed by some people that no consultation had taken place.
Mr Momoniat admitted that with respect to provisions there had indeed been scant consultation. However, in relation to other provisions there had been considerable consultation. Individual provinces had been given the opportunity to make comments. The Western Cape, for example, had received their correspondence and had replied.

Mr Titus (DLPG) said that they had not conducted a consultation process as they felt this process was a line function of the National Treasury. Adv de Lange expressed his dissatisfaction saying that this was a poor excuse and that many of the problems that were now before the Committee could have been resolved already.

Mr Momoniat then continued with his discussion, moving on to the provisions relating to finance and interventions. There were two small technical amendments that would be effected in this area. The first was the change to the definition of a Money Bill and the introduction of the Division of Revenue Act to ensure one comprehensive budget process. The second was a number of technical clarifications and improvements. Mr Momoniat told the Committee that today he would be focussing on clauses 9 and 10 of the Second Amendment Bill, Chapter 11 of the Municipal Finance Management Bill, the broader intervention mechanism that will be created and answering any other concerns that might be present.

The first step would be to understand the background upon which the process must be considered. He outlined the fiscal framework within which municipal borrowing would occur. The Municipal Grants Framework, which was published in 1997, reflected the developing intergovernmental relations. There was also the new budget framework, which provided for a three-year budget and also simplified the procedures in this area. In addition there was the Borrowing Framework which had been published in July of 2000.

Another aspect of the fiscal framework was the fact that South Africa had a system of co-operative governance. The Inter-Governmental Fiscal Relations Act gave effect to section 217 of the Constitution. The most important thing to consider he was the White Paper on Local Government that had a section specifically dealing with municipal borrowing and interventions.

In considering the fiscal framework the Treasury had learnt that where there were rights there were also responsibilities. Local governments were given the power to budget, which included the determination of taxes, charges, they were given the power to borrow money and spend that money. It was then up to the Provincial sphere to see that these municipalities were collecting money they were entitled to. This was not the only function, as broadly speaking it had to seen that municipalities had fiscal capacity and effort and that there was an efficient expenditure of funds.

Furthermore the fiscal framework provided for grants given up-front. The grant framework provided for three-year allocations in equitable shares as well as conditional grants. This was provided for in the Annual Division of Revenue Act. After the budget no additional or extra grants would be given. Also no guarantees or contingent liabilities would be provided for.

Mr Momoniat then discussed the borrowing framework, which was contained in the White Paper on Local Government. This White Paper involved a three consultative process, approved by Cabinet in July 2000, and Gazetted on July 28 2000. Out of this White Paper the Municipal Finance Management Act and the Constitutional Amendments emerged. In relation to these proposals there were provincial workshops with SALGA and municipalities. Banks and other stake-holders were also consulted.

Clause 10, which will amend section 156 of the Constitution, seeks to address the problems of conflict between section 230, which enables borrowing, and the practical considerations, namely the binding of future municipalities. The amendment takes care of this by expressly providing that a municipality is able to bind future ones. These provisions provide for no National or Provincial involvement and are thus largely uncontroversial.

In the context of financial emergencies, Chapter 11 recognizes that nobody will lend money to municipalities if they perceived a risk of non-repayment. Since 1994 many municipalities had come close to, or had defaulted. The problem here was that once one municipality defaulted, all municipalities were redlined by banks and other moneylenders. As a result of this a mechanism was needed to ensure that if all else fails, including National and Provincial intervention, a default can be resolved quickly and independently of political process.
Mr Momoniat suggested that most financial problems should not be resolved by further financial grants but by increasing local taxes, charges or by cutting expenditure. The problem was that currently the court had the power to seize any assets and thus cripple the municipality. He submitted that a municipality should have the ability to buy time, keeping its creditors at bay, but only if it was dealing with its problems.

Mr Momoniat turned to clause 9, asking what would happen in a bad case scenario. It was important to know how a court would be prevented from taking unreasonable action such as the attachment of assets needed for essential services. On the other side of this coin was the question of how the right of residents to these essential services would be protected. This needed to be done while maintaining a delicate balance with the concerns of moneylenders. The most important question to be addressed would be how to empower a municipality that needed time to pay its debts, or even write off a debt that was too imposing.

Clause 9 thus tried to achieve a balance by amending section 155 to provide for a court-triggered declaration of a fiscal emergency. The aim of this intervention would be to nurse a municipality back to health. This would be the duty of an administrator, a municipal financial emergency authority who would fall under the Department of Provincial and Local Government. Mr Momoniat added that the dissolution of the Council might not be enough and the administrator may require the power to increase taxes, charges or to cut expenditure, without affecting service delivery.
Clause 9 would involve no involvement by the Treasury or national government, but by an administrator. Mr Momoniat said that a municipality that took the initiative to resolve its problems will make all the right budget decisions themselves. The question was then what would happen if a municipality did not comply and the Council just got reelected. Mr Momoniat said the only need for a Constitutional amendment was the fact that someone besides the Council may be required to decide on the budget.

On Clause 9 Mr Momoniat said that the National Treasury agreed that the application of the section would have to be narrowed. The original clause, as gazetted, was too wide and thus useless. The new wording allowed the usurping of powers restricted to financial legislative powers and not all legislative powers. These financial legislative powers would include matters relating to the budget, taxes and spending.

Mr Momoniat explained that conceptually speaking there were different intervention mechanisms. There was the intervention used in relation to financial crisis and those used for non-financial crisis, such as the failure to deliver services. In relation to financial crisis often proof could not be waited for. This was because ‘bleeding’ occurred where the municipality slipped further into crisis while proof was being sought. Mr Momoniat said that for this reason non-financial crises were often easier to identify because they entailed the lack of a service, something clearly visible. He added that it was possible for a municipality to be perfectly financially healthy but still suffer a non-financial crisis.

Mr Momoniat said that interventions in terms of section 139 were currently limited to ‘executive failures’. Therefore provinces do not have the power to intervene in the event of a legislative failure. It also cannot intervene on contractual failures, especially in regard to the private sector.

Finally, the passage of these amendments would be through the section 74(3)(a) route which does not allow for NCOP participation, since the amendments do not affect the current powers or functions of the provinces.

After Mr Momoniat’s presentation the Committee heard from Mr M Bhabha, who spoke of his experience at the local government level. After Mr Bhabha’s address the Committee posed questions to both Mr Bhabha and Mr Momoniat.

Mr Bhabha said that intervention should be viewed as the last drastic measure. Furthermore the need to intervene indicated a failure not on the part of the municipality but on the part of the province, most often a result of a failure to work co-operatively. This held true at least in the scope of his own experiences.

Mr Bhabha told the Committee that when they had intervened, they tried to achieve a balance between the need to intervene and the autonomy of the municipality. The example he gave here was of the town of Stilfontein in the Northern Province, where interventions were shown to undermine the autonomy of a municipality. Stilfontein is a gold mining town. When the price of gold went down massive unemployment ensued. When the need to intervene arose, failure was seen to lie with the municipality. This came as a result of the fact that even when the gold price dropped unemployment and retrenchment was foreseeable, the province failed to take any steps to control or minimize the effect.

An administrator lacking any experience at the ground level was put in. Mr Bhabha submitted that an administrator assuming the role of a politician created its own problems. Often decisions made by the administrator would have been properly taken by a democratically elected politician.

Mr Bhabha said that institutional capacity was often another important factor. In the town of Tweeling there was such an institutional capacity. Here the council was so small that if three or four people did not arrive for meetings there would be no quorum and a meeting could not properly take place. In the context of Tweeling the budget did not get passed. Previously, a provision in the Local Government Transition Act, 1993, allowed a province to pass a budget on behalf of a municipality. In the past it had been felt that this provision was a bit draconian but now opinions had changed. Mr Bhabha suggested that perhaps it would be desirable to extrapolate these provisions from the Local Government Transition Act instead of proceeding with the present course of action.

Adv de Lange then said that the solution would not be that simplistic, as a trumping clause would still be needed. This would be necessary because the Constitution allowed the assumption of only executive functions, while the passing of a budget was a legislative function.
Mr Bhabha agreed but submitted that when looking at an executive function as contained in section 139 of the Constitution, it needed to be looked at as a verb. In the actual functioning of the municipality a councilor’s duty had three dimensions. The first was the administrative functioning of the municipality. The second was the political dimension where the councilor sat as a member of council. The third was the representing of the community who elected him or her. If an administrator was allowed to assume a budget, which is clearly a political function, then this makes a mockery of the entire system. This is because the community should be a part of the process at all times

The next example that Mr Bhabha gave was of a town called Oogies. He used the example of this town to show that the supposition that an intervention or an administrator would improve the situation was incorrect. In the Oogies example, consultants were brought in to advise on how best to nurse the municipality back to health. The problem with this was that it was obviously in the best interests of these consultants to perpetuate the intervention as long as possible. The administrator in Oogies was wholesaling biltong. He argued that a mechanism to oversee administrators was desperately needed, as there were areas where administrators had been very irresponsible.

At this point Adv de Lange asked Mr Bhabha whether he agreed that in certain instances it was possible that an intervention would require the assumption of both executive and legislative functions. Mr Bhabha agreed but added that most of the decisions at municipal level were non-legislative.

Adv de Lange then asked Mr Bhabha if he had looked at the Municipal Finance Management Act and Chapter 11. He responded that he had but would refrain from commenting. Instead he gave three suggestions which might offer better solutions than the present course of action. First, national interest should be supported at all levels, and to ensure this national interest is desirable and long overdue. Despite the desirability of national intervention, Mr Bhabha’s second point was that he felt this was a dangerous way to amend the Constitution. On this point he argued that the structure was clumsy with one intervention mechanism in section 100 and another in section 139. On this matter, Mr Bhabha’s third suggestion was the creation of a more comprehensive and neater intervention section. He suggested the possibility of a dedicated chapter. He also submitted that section 155(8) be integrated into the intervention provisions better.

Discussion
Ms S M Camerer (NNP) asked Mr Momoniat a question relating to the consultation process. The Committee had in its possession statements from institutions to the effect that were not consulted on these matters, especially the issue around the reduction in size of the FFC. She said that she could not reconcile Mr Momoniat’s statement that consultation had taken place with those who say no such consultation ever took place. To this Mr Momoniat replied that the Treasury Department had a register of institutions which had been consulted. The problem was not consultation but more substantive in nature. If looked at from an economic perspective, the reduction of the FFC was a logical and desirable move. Looked at from the perspective of the Provinces the perceived consequence of the reduction of the FFC is that provinces would lose valuable representation. He submitted that from the perspective of people who lend money to municipalities there was nothing wrong with the reduction of the FFC.

Ms Camerer said there was an obvious need for mechanisms to deal with financial emergencies, the problem was how this would be accomplished. Local governments felt that the mechanisms currently in the Constitution were those agreed to in the negotiation stages of the formation of our Constitution. Local governments have suggested that it might be better to give the Structures Act an opportunity to operate as it might adequately deal with the situation. Then if this Act failed to accomplish the desired goal, then these constitutional amendments could be considered. Their view was thus one which did not completely overrule the possibility of National intervention, but advocates an approach which seeks not to disrupt what has already been put in place.

Mr Momoniat said that under the present intervention mechanism interventions were difficult. Even when carried out, they were no guarantees that the situation would improve. Furthermore, the province could be aware of the problems but still choose not to intervene. Once interventions took place, it would be necessary to trade-off between taking powers away from the municipality and still providing for its autonomy. Once this was done there were still other factors that would impact upon the chance of the intervention succeeding. One such a factor was sensitivity. When appointing an administrator, and indeed throughout the procedure, it would be important to be politically sensitive. If this rule was not observed then the chance of succeeding would be minimal.

Mrs F I Chohan-Kota (ANC) alluded to the fact that Mr Momoniat had first said that the amendment would attract prospective moneylenders. However, he mentioned that this was also a protective measure in that when provinces owed money it placed a constraint on the degree to which a private citizen could bring an action to have a state of emergency declared. She said that this could not be limited to big amounts because if a municipality bought flowers and did not pay due to forgetfulness or could not pay for any other reason then a state of emergency could be declared because the municipality failed to settle a R500 bill.

Adv de Lange said there was no worry here because to have a state of emergency there needed to be a serious economic problem. A R500 bill would hardly constitute a serious economic problem. Ms Chohan-Kota said she did not mean the amount in a literal sense but that she was worried over relatively small amounts. She said all this in the light of the fact that what might be a negligible amount in the greater scheme of one municipality might actually be a substantial amount in a smaller, poorer municipality.

She continued that often lending periods spanned ten years. Were such problems experienced with repayment in the past and with the municipalities refusing or failing to take the loan into account in the budgeting process?

Mr Momoniat said that in this respect there were two considerations. The first was the political process. De Aar was taken to court for failing to do just this. The aim here would be to understand at the most basic level why the municipality felt fit not to take the loan into consideration. The second concern was that the right to seize assets definitely needed to be limited. This was because the municipally was not like an ordinary company. A municipality has a revenue stream, which it receives in return for the provision of services. If municipalities’ assets were seized then it would no longer be able to provide these basic services. This was undesirable for two reasons. Firstly that people living in the area would no longer receive basic services and secondly because now the municipality would no longer be entitled to its revenue stream. People would stop paying their rates, the municipality would be plunged even deeper into economic disaster. Mr Momoniat added that the concern was not really to limit the court process in relation to big amounts, instead a mechanism was needed to limit court proceedings against a municipality where those actions were frivolous.

Mr Bhabha then said the threat of dissolution of a Council should not be underestimated. He said this was a serious threat which constituted a serious weapon. He said he agreed with Mr Momoniat’s statement that a mechanism was needed to pass a budget where a municipality had failed to do so. He however added that the proposed way of closing the gap was not the appropriate way as it undermined the structure provided for in the Constitution and legislative powers could never be usurped.

Mr P Smith (IFP) asked to what extent clause 10 was necessary as it seemed to him there were other mechanism through which this could be done. If the aim was to give municipalities access to money then surely there were ways to do it without amending the Constitution.
Mr Khala, a drafter from the Treasury, said that this amendment was necessary. The problem here was the fettering of the municipalities’ discretion to determine its budget as it wished. The question was whether in an act of Parliament it could be provided that a municipality should dedicate a portion of its revenue stream to the financing of a loan. To do this would be to greatly fetter or constrain the Constitutional discretion of a municipality which came into power subsequently. This could not easily be done and could in fact not be done without a constitutional amendment.

Mr L T Landers (ANC) commented that he failed to understand why clause 10 of the Second Constitutional Amendment Bill was needed. Clause 10 of this Bill was that section which provided for the binding of future municipalities when borrowing money. Mr Landers said he failed to see why, when a councilor entered into an agreement to borrow money, it would be necessary to bind future municipalities in this way. If a municipality decided not to honor a money lending agreement such as this it would invite intervention. Why then was clause 10 required?

Adv de Lange pointed out that in terms of section 230 of the Constitution only the Executive has been expressly provided for in this manner. Thus only the Executive, and not the Legislature can be bound in this manner.
Mr Momoniat said that on this matter SALGA (South African Local Government Association) was not in agreement and submitted that there had not been enough consultation on the matter. The second issue in this area was that better co-operation between local and provincial government said that. This would overcome the need to meddle with the Constitution.

Mr Karriem then commented saying that in relation to the consultation process should be noted that most of the complaints which allege a lack of consultation are referring to sections 100 and 139 and not really those which Mr Momoniat was involved with. He added that some of the amendments had been described as technical amendments. Here he stated that these were not technical amendments at all as they affected to the fundamental nature of the Provinces’ powers.
Mr Karriem went on asking whether the new Local Government dispensation had been looked at in formulating the amendments. He said this in light of the fact that under the Constitution the new Local Government structure provided for a better executive structure. Mr Karriem said this new structure was the result of three years of hard work. He added that the amendments, especially sections 100 and 139, did not take into account the work that had been done on Local Governments. Mr Karriem agreed with Mr Momoniat’s view that a balance needed to be struck between the need for intervention and the need to preserve the autonomy of Local Government. He however also asked whether it was not true that a complete review of all the powers of each of the three spheres of government was needed. Local Government had its problems and these needed to be addressed, Mr Karriem was however of the opinion that the chosen course of action was not the best possible one.

Mr Momoniat then said that it was clear the Treasury needed to do a bit more convincing. This would be necessary, as the Treasury would not want to go ahead with the proposed amendments if SALGA did not agree. Mr Momoniat told the Committee that he was aware of the fact that the Constitutional Amendment Bills presently before the Committee contained a wide range of important issues. For this reason he would not wish to hinder the bringing into effect these other amendments. To this end he proposed that he and Mr Titus, from the Department of Local and Provincial Government, go to their principals and request leave to consult and gain the approval of those parties involved. Mr Momoniat submitted that the Treasury needed to meet with the municipalities, especially since they would be the ones to lend money when and if the amendments came into effect.

Mrs F I Chohan-Kota (ANC) asked a question relating to the banking sector. She asked what steps had been taken by Treasury, in consultation with the banking sector, to try and gauge the confidence boost that would come as a result of the alleged improvements relating to money borrowing by municipalities. Mrs Chohan-Kota asked this question in light of the fact that the Committee had heard from the Banking Council in the preceding week. The Banking Council had submitted that the amendments were good but said that they could not commit themselves to anything at that point in time.
Mr Momoniat said that there could be no guarantees that banks would lend money as each person or institution always had their own reason as to why they could not lend money. Mr Momoniat said that one could only hope that on a balance more people would be prepared to lend money to municipalities.

Constitution of the Republic of South Africa Second Constitutional Amendment Bill, 2001
The Committee now moved to discuss the Second Constitutional Amendment Bill. Adv de Lange introduced the topic of money bills and the proposed widening of their definition in the amendment bill. He said that those militating against this change to the definition argue that this change would result in the prevention of Parliament from introducing much needed legislation. The amendment seeks to provide that Chapter 13 legislation can only be introduced by the Minister of Finance. The case made against the amendment asks what will happen to other bill which on the fact do not look like money bills but never-the –less fall into this category. The converse is also argued, namely that it will stop Parliament from introducing Chapter 13 legislation which is purely technical in nature. Some have also said that the practice in Parliament already matches what is now sought to be caste in stone. However, providing for this situation in the Constitution would be too rigid and a proposed alternative was the requirement of consultation with the Minister of Finance.

Mr Momoniat conceded that the proposed new position might be overkill. He also said that to perfectly honest the Treasury had not considered the proposed position from the perspective of a member’s capacity to introduce legislation.

Mrs Camerer asked a question on clause 12 of the Bill. This clause related to the FFC. Mrs Camerer pointed out that the whole idea behind the FFC was that the FFC should represent the interests of the provinces. There was thus a provincial representative for each province. She reminded that Mr Momoniat had said that it made perfect economic sense to reduce the size of the FFC. Her question was how would it be possible to maintain provincial representation while reducing the size of this body.

Adv de Lange pointed out that the representivity argument was contradictory. This was so because it provided in the Constitution that the FFC was an independent body. Now with the prospect of the possible reduction in size of the FFC, provinces are fighting for representivity, when it can be said that an FFC Commissioner is not strictly a representative of any province. A suggestion forwarded as a solution to the perceived problem is that provinces be allowed to nominate individuals to a pool, from which the president chooses the members of the FFC.
Mr Momoniat said that the decision would be a difficult one. In consultation with the FFC they themselves had said that as a smaller body they would be able to function better. The FFC themselves had also told of how hard it was to fill the FFC. Mr Momoniat then added that he would endorse the ‘nomination of a pool’ approach which Adv de Lange had mentioned. Mr Momoniat stressed that the decision to reduce the FFC was not motivated by monetary considerations as the money involved in this matter was not considerable. Instead the considerations and motivations were purely political and were based purely on the consideration of what size would be optimal.

Adv de Lange said at this point that the Committee was still to see concrete proof of the need to reduce the size of the FFC. He said that the Committee had heard all the anecdotes of Commissioners sleeping in meetings and all the rest. The Committee was however still to see concrete proof of a need to reduce the FFC through the amendment of our Constitution. Adv de Lange said that one does not amend the Constitution on the basis of anecdotes.

Mrs Camerer commented saying that she did not object to the reduction in size of the FFC but she did object to the reduction in representivity. Here Adv de Lange submitted that he did not think it proper for a province to be represented at the FFC. He said that it was possible and allowed for the FFC to have people on it, aware of specific circumstances existing in a particular province. It was not however permissible to have someone going to the FFC, strictly speaking representing any one province and its particular problems.
Mr Momoniat then added that from a practical point of view ot should be remembered that the FFC did not make recommendations on allocation of National revenue. However, they did make recommendations on a wide range of other matters. The FFC was however only an advisory body that operated independently and was subject only to the Constitution. Mr Momoniat said that he agreed with the Chairperson, that the position around the FFC was a strange one which seemed contradictory. Mr Momoniat resolved to wait from the submission from the FFC and to then take the matter from there.

Adv de Lange asked why clause 15 of the Second Amendment Bill was required when clause 10 in the First Constitutional Amendment Bill seemed to take care of the situation. Adv de Lange aid he could understand why this provision would be necessary for Provinces but failed to see why it was required for municipalities. Mr Khala, a drafter from the Treasury, explained that the ‘fettering of the Constitutional discretion’ concern did not arise here as it did in clause 10. This was because at National and Provincial levels of Government there was a clear and complete division between legislative and executive spheres, while at the Local level these two spheres rested in the same institution.

Judicial Officers Amendment Bill
Adv L Basset (Department of Justice) briefed the Committee on the Judicial Officers Amendment Bill. Mr Basset firstly apologized for the late introduction of this Bill. Adv Basset then read through the memorandum of the Bill, explaining the aims and focuses of the Bill.
Adv Basset told the Committee that the Bill sought to give effect to some of the principles in the recent Southwood case. Adv de Lange asked why this had been done, as the Southwood judgement would not be confirmed.

Adv Basset continued saying that the Bill dealt with, amongst other things, the remuneration of magistrates. He added that in formulating the Bill it was difficult establishing where the line should be drawn as there were other matters that needed attention also. Many of the issues in the Bill and those excluded came as a result of the fact that the judiciary was being restructured. He also noted that there were aspects of this Bill which hinged on the approval of some of the Constitutional amendments.

Clause 1 and 2
The first issue discussed was appointment, and Adv basset told the Committee that clauses 1(a), (b) and 2 dealing with appointment, were clauses which took cognizance of the Southwood judgement. Here Adv de Lange expressed his displeasure. He said he disliked the idea of amending an Act on the basis of an unconfirmed judgement, especially one that was sure not to be confirmed. Adv de Lange disliked this judgement on the basis that it said that magistrates needed to posses the same qualifications as judges and thus also needed to be treated in the same way as other judges.
Adv Basset told the Committee that this proposed amendment was not based solely on the Southwood judgement but was an idea under consideration for a long time. Adv Basset said that this change was considered even by the Minister of Justice preceding the present one.

Adv de Lange said his concern here was that the amendment would give the entire right of the appointment of Magistrates to the Magistrates Commission. The danger in this was that the Magistrates Commission could then either let anyone become a magistrate or the complete opposite. They could form an exclusive body of individuals by raising the requirements to unreasonable levels. Adv de Lange said that it was especially dangerous to do this in respect of a body which already enjoyed little legitimacy

Clause 6
The next clause to arose discussion was clause 6 which relates to the remuneration of judges. Adv Basset said that the amendment sought to remove the power of Parliament to determine the salaries of judges. Adv Basset pointed out that this power was reserved for the executive and that the amendment came because it was unconstitutional to reduce the salaries of judges.

Adv de Lange then asked why the amendment was necessary. If the reduction of judges salaries were unconstitutional then the executive could not do this, despite the fact hat it had the power to determine judges’ remuneration. Why then would it be necessary to remove this power from Parliament if such an action would be found to unconstitutional?

Adv Basset said he did not know and would consider the removal of the clause. To this Adv de Lange responded that the removal of the clause would not be necessary as the removal of this power from Parliament could be done. He just wanted to know why Adv de Lange thus recommended that Adv Basset should rather look into the reason for this amendment than remove it altogether.

Adv de Lange also warned that the consequences of such an amendment would be enormous. He pointed out that in the recent past the salaries of magistrates had been increasing rapidly and would soon match those of judges if their growth did not slow down soon. If these salaries did not slow in growth then soon much of the relevant workforce would be attracted to magistrates’ posts, resulting in decreased amounts of public prosecutors and the likes.

Adv Basset then moved to discuss the amendments as they related Constitutional Court judges and the Chief Justice of South Africa. In relation to CC judges the Bill seeks to place these judges on an equal footing with other judges. It attempts to do this by including references to CC judges in the text of the Act. The Chairperson said that these matters had been discussed at length and the Committee was thus obviously not in need of a briefing. This was also said, for different reasons, of the amendment relating to the Chief Justices Office. Adv de Lange said that this matter was simple and easily understandable. It was a technical amendment which had also already been discussed by the Committee.

The meeting was adjourned.