As the week-long African Regional Meeting of the International Association of Judges has been taking place in the Liberian capital, Monrovia, the Judicial Officers Association of South Africa (JOASA) release a strong statement on the plight of Magistrates in that country saying that they are “demoralized and frustrated”.
“Magistrates are demoralized and frustrated by the ineptitude of those responsible for its remuneration and tools of trade. Magistrates are fighting mad because no one is taking responsibility for the plight of magistrates. The only thing that matters to those in power is the power to control magistrates and to discipline those that dares to speak out about the injustices magistrates suffer. It is their stated views that such actions are unbecoming of a judicial officer who is supposed to be a “Fit and Proper” individual,” the JOASA statement says.
FULL TEXT OF JOASA’S PRESS STATEMENT BELOW:
MEDIA STATEMENT
JOASA, Sunday, 05 May 2024-
Magistrates the Stepchild of the judiciary. A slave to its master the Chief Justice and/or the Minister who both denies ownership.
JOASA wishes to clarify and put into correct context the call for all Judicial Officers in the Lower Courts to give it a mandate regarding the possibility of industrial action.
Magistrates are demoralized and frustrated by the ineptitude of those responsible for its remuneration and tools of trade. Magistrates are fighting mad because no one is taking responsibility for the plight of magistrates. The only thing that matters to those in power is the power to control magistrates and to discipline those that dares to speak out about the injustices magistrates suffer. It is their stated views that such actions are unbecoming of a judicial officer who is supposed to be a “Fit and Proper” individual.
Magistrates are further frustrated because they are not protected by any of the Labour Law Legislation. Magistrates according to the minister do not have the right to, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petition, and further does not have the right to fair labour practices. In the absence of any recourse for Magistrates who suffers economic hardships and is deprived of tools of the trade, what is the view of the learned Minister then as to how Magistrates should conduct themselves in order for Magistrates to be heard and taken seriously when Magistrates for years now, have been telling the powers that be that their salaries and benefits are not commensurate with that of a single judiciary.
JOASA says, Magistrates matter because the majority of South Africans come into contact with the legal system through magistrates. Magistrates are the ‘coal face’ of the South African judicial system:
It is in the Magistrates’ Courts that justice is tested in its most crucial, most pervasive, most voluminous, most pressurized, and logistically most demanding dimensions – in literally thousands of cases every day. The continuous struggle for the legitimacy and the efficacy of the instruments of justice is substantially lost or won in the Magistrates’ Courts. (Mohamed 1998, p. 47-8)
In South Africa more than 95% of civil and criminal cases are dealt with at the magistrates’ courts. These courts plays a critical role in building the public’s trust and confidence in the law and the justice system. (DGRU Discussion document on the governance of the judiciary in South Africa
ICRPOB
The Independent Commission for the remuneration of Public Office Bearers, is the legislated body, charged with the primary objective of making recommendations to the President concerning salaries, allowances, benefits of public office bearers. The IRCPOB since its inception published two (2) Major Review Reports. The first Major Review report in March 2007 and a second Major Review report in April 2008. A Third Major Review report was prepared and will be submitted to the president on the 15 May 2024 for consideration. Of note is the fact that the third Major Review took an inordinately long time to finalize. However despite the time spend on preparing the report the report does not address the concerns raised in the 2007/2008 reports namely that magistrates are public office bearers and should not be members of the GEPF. Magistrate’s salaries were last reviewed in the 2007/2008 financial year.
During a recent interview hosted by NewsroomAfrika, Dstv Channel 405, M.P. Tjie, Deputy Chairperson of the IRCPOB recorded the following statements:
- Major reviews are conducted every 5 years;
However, nothing can be further from the truth. JOASA challenges the IRCPOB to provide the necessary proof that Major Reviews were conducted every five years as stated by him. If what Tjie is saying is true then Major Reviews were supposed to have been done in 2013, 2018 and the latest in 2023. The interview of Tjie confirms JOASA’S belief that the IRCPOB is clearly biased to the prejudice of magistrates. Tjie is clearly ill informed. Tjie is further unaware of the decision by the chairman of the IRCPOB’s in 2015 where he on the 07 June 2015 informed a JOASA delegation of a policy decision not to have a Major Review during his term of office, and the decision to group the various office bearers in to smaller groups namely: Judiciary; Legislature and Traditional Leaders. That each grouping will undergo a major review within his term of office coupled with an actual increase. That the commission was busy with a major review of the position of Local Government. Tjie is further unaware that the major review promised never materialized.
2. Cost of living adjustments is done every year:
JOASA wishes to state clearly it never denied that cost of living adjustments are supposed to be done annually. JOASA is saying that Draft recommendations are send to the LCRC with instructions to provide inputs to the IRCPOB with extreme short notice and when the final report is later publish it shows little of the input by JOASA and or the LCRC. A further IRCPOB instruction that is of great concern is the fact that the contents of the draft report must be kept a secret. JOASA further say that the recommendations is on average 08 to 13 months late to the extreme prejudice of magistrates;
Recommendations are made available to Parliament usually when Parliament is going on recess or when the President is not unavailable to make his determination.
A quick comparison of the proposed recommendations dated 30th July 2014 accompanied by the commission’s letter calling for submissions, reveals that the final recommendations remained unchanged when published on the 29th January 2015, save for an addition in paragraph 2 to note that the consultation process was complied with. Magistrates received a 0% increase for the 2020/2021 financial year.
JOASA further say that all increases thus far were below inflation and far less than that of public servants.
3. Judges are currently paid below market average and Magistrates are currently paid above market average:
This statement by Tjie does not mention the benefits a judge and the judge’s spouse receives, benefits magistrate don’t receive. This statement is a contradiction of the commissions 2007/2008 report where it confirmed that the gaps between the lowest level judge and the highest level magistrate is to wide and that pay lines are to be developed on a sliding scale, with a uniform remuneration structure including benefits and conditions for the entire judiciary. That core problems complained of by magistrates has been disclosed as far back as the 05 May 2004 in the CS Holdings report commissioned by the IRCPOB. The commission has been aware of these complaints for more than a decade but has made no effort to address these complaints. This statement further flies in the face of what the Deputy Minister told Parliament Portfolio Committee on the 29th August 2023 when he raised concerns with the late submission by the IRCPOB of its recommendations to the president and a further statement by the minister that according to the Chief Justice that the inflationary erosion of the judiciaries salaries indicated a total shortfall of minus 20.6% over the years. In that same meeting the Deputy Minister stated that there is a particular problem with magistrate because a lot of magistrates comes from the prosecutors. Public servant get inflationary linked increases every year and that the effect of this is that prosecutor’s salaries have been increasing at a greater rate than that of magistrates and that that is going to cause problems down the line because why would a prosecutor want to become a magistrate if they earn more than a magistrate. The minister went on to say that the gap between magistrates and judges is quite extensive and judges don’t contribute to a pension fund but get a salary for life. He confirmed that magistrates get less then what public servants are getting. Tjie shows a total lack of understanding of what the role of a magistrate is.
The records will reflect
Since 2007/2008 the ICRPOB has dismally failed in its duty around embarking on the process of a Major Review in particular in respect of the Magistracy. Magistrates are seriously frustrated about the ICRPOB inability to resolve their own findings contained in the 2007/2008 review report. The IRCPOB is aware of the complaints of magistrates and has made no effort to address these complaints for more than 17 years.
The IRCPOB’s refusal to review the salaries of judicial officers and more specifically those of the Lower Court, has forced Magistrates in the past to embark on court action and also strike action in 2013. This ineptitude of the IRCPOB has led to the immiseration of magistrates.
The IRC is supposed to within two months after 31December of each year submit to the President a report on its activities during that year. This has never happened. Magistrates, on average receives their annual salary increases at least 08 to 13 months late. Magistrates have been prejudiced financially to such an extent that it is no longer possible to accept such conduct by the IRC. Adequate remuneration becomes inadequate when responsibilities of workers increase. No employer can expect a worker to perform additional functions involving more responsibility and not immediately review and increase that workers salary. This is based on the universal labour principle of fair pay for work done. For years now and whilst the IRCPOB was sleeping, the enactment of new legislation caused an influx of more civil and criminal work. Magistrates are now required to also apply High Court legislation (ESTA, Equality Court Legislation etc.) without any increase in remuneration. This is tantamount to Slavery.
JOASA notes that every year whenever there is a discussion about magistrates’ remuneration, there is a deliberate attempt to discredit magistrates by the publishing negative comments in the media. Comments referring to incidents more than a decade old, however, in the same breath nothing is said about judges for example the Hlophe and Motata debacle.
A lot have been said by various parties with reference to magistrates’ salaries. As recent as 29 April 2024 Jonisayi Maromo reported that magistrates earns in excess of 1 million annually, but could go on strike, demanding more money. However, in that same article, nothing is said about the gravy train salaries and extensive benefits Judges and Political Office Bearers receives. Statements such as these are deliberately done to create an impression that magistrates earns a huge salaries and bask in the sun of their benefits. That their complaint is without merit because they earn more than a million rand. Magistrates receive a basic salary and a flexible portion which flexible portion hold no real benefit for magistrates other than pushing them into a higher tax bracket.
Magistrates are the only group of Public Office Bearers who are treated differently in respect of remuneration and benefits. Magistrates are severely discriminated against and literally receives the crumbs that falls from the table of their masters.
JOASA challenges the Minister and/or Deputy Minister to publicly explain the benefits of magistrate vis-à-vis the benefits that judges and political office bearers receives. The minister is further requested to explain the blatant discrimination against magistrates.
A further important factor that must be highlighted, a matter that is often misinterpreted, is the fact that the salaries of Magistrates are published as a total remuneration package (total cost to company) and not cost-plus benefits.
While it is understandable that remuneration of public representatives would often spark a public debate given the socioeconomic challenges faced by the country. However it also equally vital that magistrates are fairly remunerated consistent with their scale of responsibilities under the Constitution. In analyzing and scrutinizing the remuneration of magistrates, we must also benchmark it against those of their counterparts globally, particularly in similar developing countries. A survey suggests that magistrates do not earn anywhere higher than those of countries with similar GDP and population, amongst other considerations. It is also worth noting that, as an additional safeguard, magistrates are barred from undertaking any other remunerative responsibilities outside of their work. Magistrates demonstrated appreciation that public service is not about self-enrichment or luxury. In this regard, magistrates would be the last to insist on anything beyond an independently determined just, fair and sustainable remuneration commensurate with their obligations under the Constitution and the law.
On paper it appears that magistrates’ receive a salary of a million rand, however, in reality it is the take home (Nett.) salary that matters and that is of great concern to magistrates. The public would be horrified to know that magistrates, after their statutory deductions (tax, pension and medical aid contribution) and after paying for necessities such as a bond, a car, water and electricity, rates and taxes, life insurance and safety and security is left with no money to buy food, buy petrol to travel to work. Magistrates cannot afford to pay for the tuition of their children.
JOASA reiterates, magistrates are barred from undertaking any other remunerative responsibilities outside of their work. There is simply no other means to supplement their income. Magistrates are therefore forced to live on personal loans, overdrafts and credit cards. Such a situation is totally unacceptable.
Magistrates are left with no option other than to call for industrial action.
Single judiciary
The judiciary is worldwide recognised as the third arm of government, but not quite so in South Africa. A single judiciary is a Constitutional injunction. The provisions of Chapter 8 of the Constitution enjoins all to ensure that the magistracy is integrated into the broader judicial system. Deputy Minister Jeffery, at the JOASA AGC, 2014 explained what a single judiciary is by saying:
The term “single judiciary” would commonly refer to a process through which the magistrates’ courts and magistrates are integrated to form part of a unified court system. He went on to state that this is what is envisaged by the Constitution. Deputy Minister Jeffery said that the complete overhaul of the Magistrates’ Court Act was long overdue.
That was said in 2014. The Minister dismally failed in his Constitutional duty in realizing the vision of Chapter 8 of the Constitution. Various pieces of legislation were promulgated such the Seventeenth Constitutional Amendment Bill and the Superior Courts Bill. These Bills paved the way to achieve a “Single Judiciary”. However, the opportunities were lost to achieve a “Single Judiciary” when the Seventeenth Constitutional Amendment Act and the Superior Courts Act were enacted without including the magistrates’. The opportunity was lost because the minister lacked the political will and a few judges were biased against including magistrates in a single judiciary.
As an example there is an absolute resistance to a simple name change to do away with the term “magistrate”, which term is a relic of the apartheid past. JOASA suggested the term magistrate be replaced with the name Judges of the Lower Court.
Issued by JOASA
Date: 05 may 2024