Judges and Magistrates Remuneration Determination: concerns raised by JOASA & ARMSA

Meeting report

The Chairperson advised that the Committee had not approved the recommended salary increases for magistrates during the meeting held the previous week because of the concerns that had been raised by certain interested parties.  The Committee had invited the Association of Regional Magistrates of Southern Africa (ARMSA), the Judicial Officers Association of South Africa (JOASA), the Department of Justice and Constitutional Development (DOJ&CD) and the Independent Commission for the Remuneration of Public Office Bearers (ICRPOB) to present submissions.  The Committee had also received a submission from magistrate Ms Annelene Larsen.  The Committee had requested a legal opinion from the Parliamentary Legal Services unit.

The Chairperson reported his telephone conversation with Judge LW Seriti, Chairperson of the ICRPOB.  Judge Seriti had declined to attend the proceedings on the basis that not enough notice of the meeting with the Committee had been given.  In addition, he did not consider the attendance of the Commission at the briefing to be relevant. He had said that the Commission engaged with many stakeholders and that it was not appropriate for the Commission to address certain parties on an individual basis.

Submission from the Association of Regional Magistrates of Southern Africa (ARMSA)
Mr David Makhoba, President of ARMSA explained the racial and gender composition of ARMSA to demonstrate that the Association was representative.

Mr Hein Louw, Regional Magistrate and Member of ARMSA presented the briefing on the submission from ARMSA (see attached document).  The submission comprised a memorandum and five annexures (Annexures A to E).

Section 8 of the Independent Commission for the Remuneration of Public Office Bearers Act, 1997 (the ICRPOB Act) and section 12 of the Magistrates Act, 1993 required the ICRPOB (also referred to as “the IRC” in the submission) to make recommendations relating to the salaries, benefits and allowances of inter alia magistrates on an annual basis.  The ICRPOB Act specified what needed to be taken into consideration by the Commission before making its recommendations.

ARMSA maintained that the ICRPOB had not complied with the prescripts in section 8 of the ICRPOB Act since 2008.  In the judgment dated 3 September 2012 in the matter of The Association of Regional Magistrates of Southern Africa v President of the Republic of South Africa and Others (case number 20210/2011), Judge Bertelsmann agreed with the ARMSA position with regard to the 2010 determination.

The Chief Justice requested in May 2011 that a committee under the auspices of the Magistrates Commission was formed to advise him and the ICRPOB on matters concerning the remuneration and other benefits of magistrates.  The Lower Court Remuneration Committee (LCRC) was established.  The LCRC met with the ICRPOB on 18 October 2011.  During the meeting, the concerns regarding compliance with section 8 of the ICRPOB Act and the disparity between the salaries of magistrates, judges and prosecutors were raised.  The ICRPOB agreed to undertake a preliminary investigation.  Supporting documentation was provided to the ICRPOB by the Magistrates Commission.

The ICRPOB requested the LCRC on 9 December 2011 to submit recommendations for 2012/13.  Copies of the letter dated 9 December 2011 and the explanatory memorandum from the ICRPOB were attached to the submission as Annexure A.  The recommendations of the LCRC were attached as Annexure B.

The LCRC enquired what progress had been made with the investigation in a letter dated 23 January 2012 to the Head of the Secretariat ICRPOB in the Office of the President.  The ICRPOB advised the LCRC in a letter dated 15 February 2012 that the Commission had resolved on 3 February 2012 to further investigate the matter as the information provided was not sufficient.  On 7 April 2012, the ICRPOB advised the LCRC that the Commission would not undertake the comparative study previously agreed to due to a lack of resources.  Copies of the correspondence were attached as Annexure C.

The Chairperson of the Magistrates Committee brought the matter to the attention of the Chief Justice on 20 June 2012.  A copy of the letter dated 20 June 2012 from the Magistrates Commission to Chief Justice Mogoeng was attached as Annexure D.

The explanatory memorandum for annual recommendations for 2012/13 was published in the Government Gazette of 26 July 2012.  A copy of the Gazette was attached as Annexure E.  There was little difference between the explanatory memorandum provided by the ICRPOB to the LCRC in December 2011 (Annexure A) and the memorandum published in the Gazette (Annexure E).  This was a clear indication that the concerns and recommendations of the LCRC had not been taken into consideration by the ICRPOB.  ARMSA had approached the Court as a last resort.  The judgment by Judge Bertelsmann on 3 September 2012 supported the position of ARMSA.

Mr Louw stressed that ARMSA was not attempting to negotiate the salaries of magistrates in this forum.  The Association respected the independence of Parliament and the ICRPOB.  ARMSA recommended that the Committee made a recommendation to the National Council of provinces (NCOP) to disapprove the notice in terms of section 12 (3) (b) (ii) of the Magistrates Act.  ARMSA believed that the magistrates would find the resultant delay in the implementation of their salary increases to be acceptable.

Submission from the Judicial Officers Association of South Africa (JOASA)
Mr Vincent Ratshibvumo, President, JOASA presented the submission (see attached document).  JOASA was a non-profit, voluntary association and its members comprised 80% of magistrates of all ranks.

The submission was not intended to negotiate the salary increases of magistrates.  The background to the issue of the remuneration of magistrates was provided.  Historically, magistrates earned far less than judges in the High Court.  No attempt had been made to link the salary adjustments of magistrates to the adjustments made for judges and to address the widening gap between the remuneration of the judiciary in the High and Lower Courts.

The role, status, duties and functions of magistrates were explained.  Magistrates were required to have university qualifications.  Magistrates could impose sentences equal to the sentences passed by judges in the High Court.  The jurisdiction of Magistrates’ Courts was extended and the Lower Courts currently handled more than 90% of all cases.  As a result, the Lower Court rolls had increased substantially.  The increased workload had not been reflected in the salary increases recommended by the ICRPOB (referred to as “the IRC” in the submission) in the previous four years.

The Chief Justice had mandated the Chairperson of the Magistrates’ Commission to establish the LCRC.  The LCRC had submitted recommendations for salary increases for magistrates for 2011/12 and 2012/13.  The recommendations were not implemented by the IRCPOB. 

Details were provided of the disparity between the salaries of magistrates and public prosecutors.  Public prosecutors earned more than magistrates of comparative rank.  The non-pensionable allowance for magistrates differed from the allowance for other civil servants.  The recommendation of the IRCPOB that magistrates were removed from the Government Employees Pension Fund (GEPF) had not been implemented.  The IRCPOB had recommended in 2008 that magistrates were provided with laptop computers.  To date, the recommendation had not been implemented.  Magistrates were not granted membership of the PARMED medical aid scheme available to judges and Members of Parliament. 

The disparities were brought to the attention of the ICRPOB.  Although the Commission gave an undertaking to investigate the matter and resolved to do so, the position was subsequently reversed.  The judgment in the matter ARMSA v the President of the Republic of South Africa and others confirmed that the ICRPOB had failed to consider all the aspects as it was required to in terms of the applicable legislation.

Section 165 (4) of the Constitution required the State to protect the Courts to ensure their independence, impartiality, dignity, accessibility and effectiveness.  JOASA acknowledged that magistrates differed from judges in the High Court and did not expect that magistrates should earn the same salaries as judges.  However, the role and function of magistrates should be reflected more equally in the remuneration packages.  JOASA did not accept that a lack of financial resources was an acceptable excuse for the failure to provide adequate benefits to the approximately 2000 magistrates.

JOASA requested that the Committee did not recommend the approval of the IRCPOB recommendations by the NCOP.  It was understood that such action would delay the implementation of the salary increases but this was acceptable to the members of the Association

Briefing by the Department of Justice and Constitutional Development (DOJ&CD)
Mr Esser Allers, Director: Policy Unit, DOJ&CD quoted the provisions in section 12 of the Magistrates’ Act, which dealt with the remuneration of magistrates.  Section 2 of the Judges Remuneration and Conditions of Employment Act provided for the President to determine the salaries, benefits and allowances of judges and magistrates after taking into consideration the recommendation of the IRCPOB.  The IRCPOB was required to consult with the Minister of Justice and Constitutional Development and with the Chief Justice on an annual basis before making the recommendation to the President.

The Department declined to comment on the submission made by ARMSA.  The DOJ&CD had provided the Committee with an analysis of the percentage increases applicable to public servants, prosecutors, magistrates and judges for the years 2003 to 2012.  An analysis of the various rankings within each group had not been done.  The data indicated that the total percentage increase over the period had been 74.4% for public servants, 87.6% for prosecutors, 133.56% for magistrates and 154.77% for judges.  However, the Department could not confirm that the information provided was complete or accurate.

Discussion
Mr Louw raised a strenuous objection to the information provided by the Department.  He said that the information provided was misleading the Committee.

Mr M Mokgobi (ANC, Limpopo) called a point of order.  The Committee would consider all information provided and would request legal advice if necessary.  He was supported by Mr M Makhubela (ANC, Limpopo) and Mr J Gunda (ID, Northern Cape).

Mr Gunda asked that Members were allowed sufficient time to study the documents included in the submissions.

Mr D Joseph (DA, Western Cape) asked for clarity on the acronyms in the submission documents.

Mr Xhanti Zeka, Chairperson of JOASA, Gauteng and Mr Ian Colditz, Regional Magistrate and Member of ARMSA explained that the acronyms “IRC” or “ICR” referred to the Independent Commission for the Remuneration of Public Office Bearers.  “LCRC” referred to the Lower Court Remuneration Committee.

The Chairperson asked for the briefing on the legal opinion requested by the committee to be heard before further discussion took place.

Legal Opinion from the Parliamentary Legal Services
Ms Phumelele Ngema, Parliamentary Legal Adviser presented the legal opinion requested by the Committee on the implications of the judgment by Judge Bertelsmann in the matter of Association of Regional of South Africa v the President of the Republic of South Africa and Others.

The DOJ&CD had indicated that the judgment handed down in the North Gauteng high Court on 3 September 2012 would be appealed.  In the interim, the judgment remained valid and enforceable.  The Court made orders (amongst others) to set aside the decision of the President to increase the remuneration paid to regional magistrates and Regional Court Presidents by 5% with effect from 1 April 2010.

The draft notice and determination by the President of the salaries, benefits and allowances of the judiciary for 2012/13 were referred to the Committee and the portfolio Committee on Justice and Constitutional Development on 28 August 2012.  The Committee had received the submissions from JOASA and Ms Annalene Larsen, which referred to magistrates’ salary increases for 2012/13.

The Committee seeked legal advice on whether its processes to approve or disapprove the annual determination for of the remuneration for the judiciary for 2012/13 would be affected by the judgment.

The applicable legislation were sections 166 and 219 (5) of the Constitution; the Magistrates’ Act, 1993 (Act no. 90 of 1993); the Judges’ Remuneration and Conditions of Employment Act, 2001 (Act no. 47 of 2001) and the Independent Commission for the Remuneration of Public Office Bearers Act, 1997 (Act no. 92 of 1997). 

The powers and responsibilities of the ICRCOB were set out in section 8 of the ICRPOB Act.  The Act was clear that the Commission was required to consult with all stakeholders.  Section 9 provided for the President to request the Commission to undertake investigations into matters concerning the salaries, allowances and benefits of public office bearers.  The legal provisions were intended to maintain the independence of the judiciary and prevent the judiciary from entering into a bargaining process with the executive.

Section 12 (3) of the Magistrates’ Act and section 2 (4) of the Judges’ Remuneration and Conditions of employment Act made provision for the President to determine the salaries, benefits and allowances of the judiciary, after taking into consideration the recommendations of the ICRPOB.  Such determination must be approved by a resolution in Parliament before it could take effect.  Parliament may reject or approve the determination.  Section 8 (5) of the ICRPOB Act only required the recommendations to be submitted to Parliament prior to publication.

In paragraph 43 of the judgment, the Court found that the complaint of ARMSA (the ‘applicant’) that the Commission had not taken into account the different circumstances of the different categories of public office bearers in respect of their roles, status, duties, functions and responsibilities to be justified.  The President had relied on the flawed recommendation of the Commission.  Consequently, the President’s determination had failed the test of legality and was found to be unlawful and irrational.

The judgment confirmed the separation of powers principle and the independence of each category of public office bearers.  In terms of sections 55 (2) and 69 of the Constitution, Parliament might not directly engage on the consultation processes required for the determination of salary increases for public office bearers but was obliged to monitor and maintain oversight of the exercise of national executive authority.

The conclusion was that Parliament might call the President to account on whether he had complied with all the legal prescripts prior to making the final determination on the remuneration of public office bearers.  The judgment provided appropriate guidelines to the Committees on how to deal with the matter.

Discussion
Mr Louw reiterated that the input provided by the DOJ&CD was incorrect.  He could provide the accurate information that was published in the Government Gazette.

Mr Ratshibvumo referred the Committee to the list of source documents included in the JOASA submission document (see page 6). Comparative studies were difficult as magistrates of equal rank received the same salary regardless of the length of service.

Mr Bloem took exception to Judge Seriti’s refusal to attend the proceedings when he was summoned by the Committee to do so.  The information provided by the DOJ&CD was not distributed prior to the meeting and its accuracy was being disputed. The Committee had to be provided with accurate information to enable it to make the correct decision. The legal opinion expressed serious reservations about whether the ICRPOB had given the President the correct advice.  It would appear that the President was informed that the magistrates had been consulted but this had not been the case.

Mr Makhubela asked why the Court had not set the entire 2010/11 determination for the remuneration of all public office bearers aside (see paragraph 27 of the legal opinion).

Ms Ngema explained that the Court only dealt with the facts in the matter before it.  The case and the judgment only dealt with the matter concerning magistrates, regional magistrates and district magistrates.

Mr Mokgobi was concerned over the potential breach between Parliament and the President.  The Committee needed to take an objective and impartial decision.  The view of the DOJ&CD needed to be clear.  The Committee could not be perceived to favour one party above the other.  The Committee had to ensure that all procedures were followed correctly and avoid taking a decision that could subsequently be overturned.

Mr Gunda observed that the action taken by the Committee had been prudent.  He suggested that Judge Seriti was summoned to appear before the Committee.  It was essential that the DOJ&CD provided accurate information and gave a true reflection of the situation.  In his opinion, the information provided by the department was of little use to the Committee.

Mr Joseph agreed that the decision of the Committee to request submissions from the stakeholders had been correct.  Parliament had to protect the independence of the judiciary and had to ensure that due process was followed. A comparison between the percentage increases for different categories of public office bearers could be misleading. He respected the right of ARMSA to take the matter to Court.

The Chairperson thanked the representatives of ARMSA and JOASA for the submissions.  The Committee would deliberate on all the information provided and would reach a conclusion after considering all the facts.  ARMSA and JOASA would be informed of the Committee’s decision.  The delegates were excused from the remainder of the proceedings.

Mr Gunda suggested that Members were allowed sufficient time to study the submissions and that the matter was postponed to the following week.  His suggestion was supported by Mr Mokgobi and Mr Makhubela.

The Chairperson thanked the PLA for the legal opinion.  He agreed to postpone the proceedings to the following week.

Mr Bloem said that the legal opinion was clear.  JOASA and ARMSA had made it clear that there was no intention to negotiate the salaries of magistrates in Parliament.  He thought that the issue was clear-cut and that the Committee could reach a conclusion.

Mr V Manzini (DA, Mpumalanga) said that Judge Seriti’s refusal to attend the meeting was not acceptable.

Mr L Nzimande (ANC, KwaZulu Natal) observed that certain matters included in the submissions did not concern the Committee.  He supported the postponement of the proceedings to the following week.  The legal opinion had clarified the role and function of Parliament.  The Committee could require more information from the Office of the President on the processes that had been followed.  The Committee had to ensure that the correct legal processes were followed.  The Committee must be seen to be fair and unbiased.  Judge Seriti was an independent judicial official and was not answerable to the Committee.

Mr Bloem disagreed with Mr Mzimande’s opinion. The legal opinion made it clear that the Committee was within its rights and was obliged to take the necessary action.

The Chairperson advised that Members would be informed of the time of the following meeting.

The meeting was adjourned.