Remuneration of office bearers of independent constitutional institutions & Regulations for judicial officers in lower courts; with Deputy Minister

Meeting report

The Chairperson said the meeting was convened for the Committee to be briefed on the draft notice determining the remuneration of office bearers of independent constitutional institutions with effect from 1 April 2019. He asked Deputy Minister Jeffery to proceed.

Remuneration of office bearers of independent constitutional institutions

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, first raised concerns about the meeting being at late notice, and asked that the Committee notify Members and the ministry timeously. He then provided a background to that matter before the Committee.

He said this was the first time the National Assembly had to approve the salary increases of the Chapter 9 Institutions. In the past, this was done by the Executive. A change occurred when there was an amendment to the Independent Commission for the Remuneration of Public Office Bearers Act, which came into effect in the past financial year, and provided that the Commission must now make recommendations to the President, who would then get approval from the National Assembly. This was a little similar to the system for magistrates and judges, except that the National Council of Provinces (NCOP) was not involved this matter.

He said that the Members should be aware of the problems that existed, because they were also getting their increases from the Commission. The Commission Report came out only in February. The President had written to the Speaker on 26 March and requested a similar dispensation to everyone else. The Commission had recommended a 3% increment for all office bearers above R1.5 million, and a 4% increase for those below R1.5million.

In the light of the financial situation, the President had said that he was intending to determine the salaries and allowances of the Independent Commissions. There would be a salary freeze for office bearers earning R1.5 million and above, which would probably affect the Public Protector. There would be 2.8% salary adjustment for those office bearers who earned between R1 million and R1.5 million. That was the determination that the President wanted to implement, and that was what had been put to the Committee.

He added that there was a problem, in that the increase was meant to be in effect from 1 April 2019. The problem was that the Act specified that the increase could not be backdated for more than a year before the date of publication – and it had not been published yet. Unfortunately, the increase must be from the date of publication.

The Chairperson asked if it was 2.8% for those who were earning R1 million to R1.5 million, and  4.5% for those who were earning below R1 million.

Deputy Minister Jeffery agreed, and said that he thought that everyone might be earning over R1 million, but he may be wrong about this. He had not seen the exact salaries of the Human Rights Commissioners.

The Chairperson replied that the part-time Commissioners earned R448 000.

Deputy Minister Jeffery apologised for the mistake.

The Chairperson thanked the Deputy Minister. He said that he had asked the secretariat to circulate the legal opinion from Parliament on this issue, and asked for confirmation on whether they had received it.

The Members confirmed that they had received it.

The Chairperson asked Members to engage with the draft notice and the report, as given by the Deputy Minister. He said the Members had taken note of the issues that the Deputy Minister had raised, and that he had also raised them earlier that morning. He said that there should not be the flexibility of being able to change meetings as they pleased, because the Members were not the only people affected by this. There were other people and stakeholders that were affected by these changes, so there was a need to be more cautious with regard to changes made to meetings and times. He apologised for the inconvenience that had been caused. He then asked Members to interact with the presentation.

Deputy Minister Jeffery asked to first raise some points that he had omitted. The Chairperson and the Deputy Chairperson, who were currently earning R1.398 million and R1.186 million respectively, would get the 2.8% increase. The other Members earned R1.087 million, and they would also receive a 2.8% increase. The other part-timers might get more – he was not sure whether being part-time would count against them.

There was not a request for an increase for the Deputy Public Protector. This was because the Deputy Public Protector had raised concerns about being paid less than the previous Deputy Public Protector. The Deputy Public Protector had asked how much the previous Deputy Public Protector was getting paid, and had assumed that she would also get paid the same amount. No determination had been made about the Deputy Public Protector, as the matter was currently with the President.

Adv H Mohamed (ANC) said that from the legal advice that was received from Parliament, particularly paragraph 13 in the conclusion, and having considered all the aspects in terms of the legal status of the notice etc., he would support the recommendation for the draft notice to be approved. As far as this spoke to the remuneration itself, there should be a condition that the President amend the date specified in the Notice, since the Notice said 1 April 2019. This would then have to be justified for it to be properly processed to 1 July, before the publication, to ensure that there was compliance, as the advice suggested that the date of publication of the notice should be within 12 months, as required by the Act.

Mr W Horn (DA) said that in terms of remuneration and future reports of the Independent Commission, there would be a new set of rules brought about by COVID-19. However, in determining the issue and advising the National Assembly, it would be very important to stress that this was for the past financial year and that it would be brutally unfair in the circumstances if all others who the President determined could not be supported. Communication would be key so that the public did not form the perception that this a new increase, or a current increase. For the sake of consistency, Parliament was duty-bound to endorse this decision.

The Chairperson said that Mr Horn’s line was bad, and he could not hear some parts of his statement. He asked for clarification about the statement he made on communication.

Adv G Breytenbach (DA) asked to clarify on behalf of Mr Horn. She said that this was an ineffective retrospective increase to do with the past financial year, and it had nothing to do with the coming financial year. This should be made very clear in communication, otherwise it would look like people were getting fat increases during these terrible times of COVID-19. The Members just needed to be careful about how they communicated this issue.

Ms W Newhoudt-Druchen (ANC) supported what Mr Mohamed had proposed. It was mentioned that the Deputy Public Protector was on level 16, and had been moved to level 15. Would the Committee receive an update regarding that circumstance?

The Chairperson said that there seemed to be no counter proposal. He asked the Deputy Minister to answer the question raised by Ms Newhoudt-Druchen.

Deputy Minister Jeffery replied that Members would receive the report. The matter was with the Speaker, in trying to establish why the Deputy Public Protector should receive the increase. The Members would receive a report once all the answers had been received.

Mr S Swart (ACDP) also supported the recommendations with the cautions that had been expressed.

The Chairperson said the draft notice was approved, with the amendment that the date of publication should be 1 July. The Committee should take the advice from Mr Horn about the communication around this issue.

Regulations for judicial officers in lower courts

The Chairperson asked that Members now address the briefing by the Department of Justice and the Magistrates Commission on the Government Notice R1692 published in the Government Gazette 42916, 20 December 2019: Regulations for the Judicial Officers in the lower courts, (amendment made under Section 16 of the Magistrates Act 90, 1993). He asked whether the Deputy Minister would be leading this.

Deputy Minister Jeffery said Mr Prinsloo from the Magistrates Commission would be doing the briefing.

By way of introduction, he said magistrates used to be public servants until 1993. They had then been removed with the Magistrates Act in 1993, and had started on the path of becoming part of the independent judiciary. The leave regulations were still applied as though they were public servants and a process had been embarked on to redo the regulations, which had involved consultations. This was then the product of that process.

The main change to the leave regulations was that previously, the magistrates were able to accumulate their leave over the entire period that they worked. When they left office (resigned or retired), they had to be paid out for that leave. Nothing could be done about the accumulated leave -- it would be unconstitutional to take that away. The new system was a three-year cycle, where one would get a certain number of days of leave per year, a minimum amount per year, but one could accumulate the rest over a three-year period. However, leave could not be accumulated past the three-year period. If it was not used, it would be forfeited. This would make things more cost effective. Magistrates were under a lot of pressure and complained about wellness programmes, and that was what leave was for. Magistrate Prinsloo would provide more detail about this.

Mr Anton Prinsloo, Magistrate: Magistrates Commission, provided a summary of the presentation. He presented the different leave categories for judicial officers, such as vacation leave, normal sick leave, special leave and exceptional leave. He explained the different scenarios in which a magistrate would be entitled to the different categories of leave.

The Deputy Minister had referred to the sabbatical leave, or the three-year leave cycle, which was the vacation leave cycle of a magistrate. This cycle ran over a period of three years, and started on the 1 January 2020. 30 days’ vacation leave per calendar year, starting each year on 1 January, would be allocated to a magistrate. A magistrate could take the 30 days during that year or transfer it into the second year. If the Magistrate was employed during the year, it would only be a pro rata of the 30 days that the magistrate would be entitled to. If a magistrate left office during that year, it would also be reduced pro rata for the period that the magistrate was not in service. The formula for calculating that was contained in the regulations.

He then explained the vacation leave rules in relation to the first, second and third year. The difference was that under these regulations, magistrates could not accumulate any further leave. Another difference was that under the old regulations, magistrates took calendar days for vacation leave and sick leave, but now they were allowed to take only working days. A magistrate may take only 86 days of sick leave during the year, which used to be 120 days under the old regulations.

This was a summary of the leave regulations, unless the Members would like to have more details.

Deputy Minister Jeffery said that these leave regulations took effect from 1 January 2020. The provisions have gone to the NCOP and the reason for bringing them to Parliament was that although this did not need an approval from Parliament, it did have the power to disapprove. If Parliament disapproved, the regulations would stop taking effect from the date of the disapproval, but anything done under that would be valid. This also meant that the system was working -- it was not a new system.

Discussion

Adv Mohamed supported the recommendation with the understanding that the leave of a magistrate would be administered better. It was known that in the past there were administrative processes that did not go according to how they should have because the Department was doing the administration. Everything would be better, considering the active participation of the judicial leadership. It was in the public interest that if civil servants did not make use of their leave days by a specific period, they would be forfeited. This was a good and accountable process, as it ensured that registered leave that was not taken within a cycle could be concluded, and not leave it to taxpayers having to account for accumulated leave when a magistrate retired. He supported the recommendation on this basis.

Mr Swart asked for clarity on the concession from the Magistrates Commission. Had there been buy-in from the magistrates?

Mr Prinsloo responded that the Magistrates Commission was the body that made the regulation which had then been referred to the Minister for publication. When these regulations were drafted, a task team had been formed. This task team was made up of members from the Department and from different organisations of the magistracy. This task team had made recommendations to the Commission for these regulations to be published. Therefore, it could be safely said that the magistracy was part of the process. The regulations had been submitted to all magistrates for comment before they were approved by the Commission.

Adv Mohamed asked whether the capped leave -- leave that had been accumulated before the new process came into effect -- that would still be paid in cash value in accordance with Regulation 38H, was unused leave.

Mr Prinsloo agreed that the accumulated leave that Magistrates had in their credit on 31 December 2019 was capped, and converted in terms of regulation 38(1) into capped leave. The leave was first audited by the Department, the results were communicated to each magistrate, and it was then approved as part of the capped leave. The gratuity, which was payable to magistrates when they vacated office for any reason, was the capped leave. The cash value was calculated in terms of regulation 38H, plus the leave the magistrate had accumulated over the last year. However, magistrates could not accumulate any other leave for the rest of their career. If they did not take their leave after three years, they would forfeit untaken leave.

The Chairperson said there had been a proposal that Members agree to these regulations.

Mr Swart seconded the proposal.

All Members agreed to the regulations.

The Chairperson said that the Committee supported the regulations for the leave of magistrates in the lower courts.

The meeting was adjourned.