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Date : 26/06/2003
Source: Department of Justice and Constitutional Development
Title: Gillwald: Judicial Officers Amendment Bill (Amendment of Conditions of Service)


ADDRESS BY THE DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT, MS CHERYL GILLWALD (MP). ON THE SECOND READING DEBATE IN THE NATIONAL ASSEMBLY: JUDICIAL OFFICERS AMENDMENT OF CONDITIONS OF SERVICE BILL, 26 June 2003

(PLEASE VERIFY AGAINST DELIVERY)

Madam Speaker, colleagues

This Bill is the second piece of legislation that is derived from the Judicial Officers Amendment Bill that was introduced towards the end of the 2001 session of Parliament. The first Bill was, of course, the Judges' Remuneration and Conditions of Employment Bill - now Act 47 of 2001.

The Bill amends five Acts in all. The amended Acts deal primarily with the appointment of magistrates and conditions of service for judicial officers, that is, judges and magistrates. It is important to note that the provisions of the Bill can be divided into two main categories of reform:

* The first category sets in place a new mechanism for determining the remuneration of judicial officers
* The second category gives effect to two separate judgments of the Constitutional Court, namely the Satchwell and Van Rooyen cases.

In seeking to provide an appropriate mechanism for determining the salaries of judicial officers, the Bill integrates the views of the Constitutional Court on this issue. As regards the Van Rooyen judgement the Court had this to say on the matter:

Judicial officers ought not to be put in a position of having to ... engage in negotiations with the executive over their salaries. They are judicial officers, not employees, and cannot and should not resort to industrial action to advance their interests in their conditions of service. That makes them vulnerable to having less attention paid to their legitimate concerns in relation to such matters, than others who can advance their interests through normal bargaining processes open to them.

However, the Court also took notice of the intention to involve the Independent Commission for the Remuneration of Public Office Bearers in this matter, as proposed in the original Judicial Officers Amendment Bill B72-2001, and expressed itself as follows in par 146 of the judgment:

Unlike the magistrates, there is no filter between the judges and the executive to mediate the determination of their remuneration. Recognising this, the Minister has submitted a Bill to Parliament to vest the Independent Commission for the Remuneration of Public Office Bearers with the power also to make recommendations on the salaries of judges and magistrates. This is part of the evolving process of judicial independence in South Africa.

I do not think we can improve on this perspective other than to confirm its intention and to express the wish that this mechanism will address the concerns of the judiciary in a satisfactory manner. The mechanism provided by this Bill thus remedies current anomalies and satisfies the requirements for a process that complies with the precepts associated with judicial independence.

Apart from a peripheral discussion on the use of the Independent Commission as a vehicle for determining the salaries of judicial officers, the Van Rooyen decision also expressed itself on other matters. Central to this ruling was the finding that section 9(4) of the Magistrates' Courts Act, 1944, relating to the appointment of acting magistrates, is unconstitutional. Clause 1 of the Bill before us thus substitutes the relevant provisions of that Act with a view to putting the appointment of acting and temporary magistrates on a sound footing.

The second Constitutional Court case addressed by today's Bill, is the Satchwell case. Here, the Court held as unconstitutional the failure of the Judges' Remuneration and Conditions of Employment Act, 2001, to afford to same-sex life partners of judges the same rights as those enjoyed by spouses of married judges.

The Bill therefore amends the said Act in accordance with this ruling and carries this principle forward in respect of the lower court judiciary, through the insertion of a relevant clause in the Magistrates Act, 1993.

Madame Speaker, the Bill that comes before us today is part of an ongoing process of judicial reform. We will be introducing further legislation, all of which will incorporate aspects of the Judicial Officers Amendment Bill that was proposed in 2001. These steps will be taken with a view to establishing a unified, transformed and independent judiciary in line with government policy and as envisaged by the Constitution.

In closing I would like to thank the chair and his portfolio committee for their careful preparation the legislation that comes before us today. In addition, I would like to thank the officials in the Department who drafted the legislation and supported the committee during its deliberations.

Madame Speaker, I support the amendments contained in this important piece of legislation.

Source: Department of Justice and Constitutional Development (http://www.doj.gov.za)

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