Programme Director
The President and National Executive Committee of JOASA
Various Provincial Chairs of JOASA
Chief Justice Mogoeng Mogoeng,
Chairperson of the Magistrates Commission, Judge Legodi
Regional Court Presidents
Chief Magistrates
All judicial officers present
Colleagues and friends,

A study by the CSVR in June 2000 entitled “Transformation of the Magistracy” stated that magistrates matter because the majority of South Africans come into contact with the legal system through magistrates. They are the 'coal face' of the South African judicial system. The study went on to quote Chief Justice Mohamed who said:

“It is in the Magistrates' Courts that justice is tested in its most crucial, most pervasive, most voluminous, most pressurised, 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.”

The importance of our magistrates cannot be overstated and it is for this reason that I am particularly pleased to have been invited to your gala dinner and to have the opportunity to address and engage with you this evening. Judicial Officers Association of South Africa (JOASA) is an important stakeholder of the justice family.

As we celebrate 20 years of democracy this year, let us to reflect on the role of our judicial officers, particularly our magistrates, in bringing about change in our society, on their role in upholding the values of our Constitution and making justice a reality for our people.

To understand where we are today, we need to understand where we come from. The role played by judicial officers prior to the advent of democracy was often not a positive one.

In 1998, former Judge-President of the Western Cape, Judge John Friedman, apologised for the judiciary’s role in upholding apartheid, saying that the judiciary itself had helped to maintain the status quo, whether wittingly or unwittingly, by upholding laws which they knew to be unjust.

Today we can proudly say that our judicial officers truly reflect and embrace the vision of our Constitution. We are well on track in creating a judiciary that does, indeed, broadly reflect the race and gender composition of our country, a judiciary which has brought about much-needed change in the lives our people through a variety of ground-breaking judgments.

I have been asked to specifically address the role of the Department of Justice and Constitutional Development in bringing about a single judiciary. In addition, there are a few other issues which affect our lower court judiciary, issues which I would also like to take the opportunity of addressing here this evening.

What is a single judiciary?

The Constitution does not expressly mention a “single judiciary” as a concept, and it has not specifically been explained in our case law, so there may be different views in the minds of different role-players as to what exactly the concept of a single judiciary entails. The Constitution has a section on judicial authority and the judicial system – both of these are in the singular.

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. This is what is envisaged in our Constitution. This unification is informed by the history of the judicial system which provided for a hybrid system in terms which judges enjoyed a larger degree of independence, compared to the magistrates.

The Department of Justice and Constitutional Development, in its Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State observes the fact that there are these divergent views between judges and the magistracy on the meaning of the concept of a “single judiciary” and therefore stresses the need that the concept be further explored as part of the on-going debate on the subject.

Programme Director,

Freeing the magistracy from executive control has been a gradual process. The Magistrates Court Act is based on the pre-1993 judicial dispensation. Prior to 1993, the magistracy was part of the civil service and magistrates were senior civil servants, who performed both administrative and judicial functions. They were appointed by the then Department of Justice and so-called self-governing states and were predominantly appointed from the ranks of prosecutors and they exercised their powers and functions under the direction and control of the Director-General.

The Magistrates Commission was established in 1993. This signalled the beginning of the de-linkage of the magistracy from the Executive. The removal of magistrates from the Public Service was necessary for the independence of the Judiciary. This resulted in the removal of magistrates from the collective bargaining process, which applies to public servants, with the result that the salaries, benefits and allowances of magistrates, like the salaries, benefits and allowances of judges, are determined by the President on the advice of the Independent Commission for the Remuneration of Public Office Bearers. Any determination made by the President in respect of magistrates and judges must be approved by Parliament and this is a further mechanism to enhance the independence of the judiciary.

Furthermore, the removal of magistrates from the department’s governing structures meant that magistrates were no longer accountable to the Minister of Justice and Constitutional Development and Director-General for the exercising of their judicial functions. As the day-to-day administration of courts became the responsibility of the Department of Justice and Constitutional Development, it meant freeing up magistrates to focus on their judicial functions.

But does a single unified judiciary automatically mean an absolutely seamless judiciary? And the answer, if one looks at the scheme of our Constitution, is no. As Chaskalson CJ held in the Constitutional Court judgment of S v Van Rooyen [2002] ZACC 8, the Constitution itself differentiates between the different courts and between the procedures for the appointment, and may I add also removal of, different judicial officers. In the Van Rooyen judgment the Court further held that Magistrates’ courts are courts of first instance and their judgments are subject to appeal and review. Thus the higher courts have the ability not only to protect the lower courts against interference with their independence, but also to supervise the manner in which they discharge their functions. These are objective controls that are relevant to the institutional independence of the lower courts.

If we were to institute a seamless judiciary in South Africa we would have to make substantial amendments to the Constitution.

As you are aware, the Constitution 17th Amendment Act and the Superior Courts Act, which came into effect on 23 August last year, have brought us closer to realising the goal of a single judiciary. The Constitution Seventeenth Amendment Act in particular, affirms the independence of the Courts and acknowledges the Chief Justice as the head of the judiciary who exercises responsibility over the establishment and monitoring of norms and standards for the exercise of judicial functions of all courts. The Superior Courts Act not only rationalises and consolidates the laws relating to the Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa, but provides for a uniform framework for the judicial management, by the judiciary, of all courts, including the Magistrates’ Courts.

In terms of the Superior Courts Act, the Judge President of a Division is now also responsible for the co-ordination of judicial functions of all Magistrates’ Courts falling within the jurisdiction of that Division. The Act spells out the nature of judicial functions in respect of which Judges President exercise judicial oversight over magistrates and this may include any matter affecting the dignity, accessibility, effectiveness, efficiency or functioning of the courts, including case flow management.

At the passing of the Superior Courts Bill, Minister of Justice and Constitutional Development, Minister Jeff Radebe said:

“The Superior Courts Act will not only constitute the blueprint for the Superior Courts suited to the requirements of our Constitution, but will also set out a framework for the transformation of the magistrates’ courts and other specialised courts which are of equal status to the High Courts and Magistrates Courts. In this context, the Superior Courts Act will set out the fundamental principles that will inform the new Lower Courts Act that will replace the Magistrates Courts Act, as well as bringing the Specialised Courts in conformity with the single judiciary principle.”

As you are all no doubt aware, a complete overhaul of the Magistrates’ Court Act is long overdue. A new Act is necessary to establish fully integrated lower courts as part of the judicial system. The envisaged Act, which will mirror the Superior Courts Act, will be preceded by a policy framework that will set out the fundamental principles that will guide the form and substance of the envisaged Bill. A Concept Framework Document with a view to facilitate dialogue on this important aspect of our transformation agenda will be finalised soon.

In engaging with this process let us, first and foremost, remember the question that we must constantly ask ourselves as we look at restructuring the lower courts, namely how can we do this most effectively, so as to ensure not only access to justice, but access to quality justice. Unfortunately, in the past, the input from JOASA has been on how these reforms can improve the status and material benefits of magistrates, with little contribution on the issue of improving the actual services that are provided to the people of our country.

For example, with regards to the utilisation of court hours, since the 2008/09 financial year, court hours have declined. In 2008/09 the average hours in the District Court were 03:52, this has dropped to 3: 29. The hours in the Regional Courts have dropped for 03:49 to 03:35 and the average hours in the High Courts from 03:10 to 03:07. This has resulted in a total reduction across all courts from 03:50 to 03:30. We know that there are many factors which play a role, but more needs to be done to improve the overall productivity of courts so that backlogs and delays do not occur and that justice is administered swiftly. We need collectively to look at how to address this. We therefore welcome the initiative by the Chief Justice with the establishment of the National Efficiency Enhancement Committee that has also been created in the 9 provinces and chaired by the Judge Presidents. The positive feedback is encouraging.

Optimal court utilisation and full court hours are essential. We have large numbers of persons incarcerated in our correctional facilities pending the finalisation of their cases. In fact as at 21 January 2014 we have more than 2500 remand detainees who have been incarcerated for longer than 21 months – of which 144 have been on the court rolls for more than 5 years. This situation should be noted against the backdrop that we have removed administrative functions from the workload of the presiding officers, we have instituted case backlog courts to assist with capacity at lower court level and the general inflow of cases into the courts have dropped.

For example, new criminal cases to courts have continued to drop from 1 058 210 in 2008/09, on an annual basis, to 916 917 in 2012/13. One would have expected that courts would thus have performed better as fewer new cases have been coming in, but the fact is that criminal cases disposed of have also declined – from 1 070 435 in 2008/09 to 949 397 in 2012/13. Fortunately, on the positive side, there has been an increase in the number of finalised cases, from 431 819 in 2008/09 to 466 800 in 2012/13.

Programme Director,

Magistrates generally do not receive good press.

In September last year, The Sunday Times wrote about shocking cases of magistrates being investigated, suspended and, in some instances, removed from office for sexual harassment, drunken driving, assault, gambling, fraud, theft and even murder.

Many of you may have seen the article in Wednesday’s The Times about how certain magistrates deal with sexual offences matters. According to the article, some magistrates have been accused of making intimidating remarks and drawing unjustified conclusions about victims based on perceptions about the victim's relationship to the accused or their way of dress or their behaviour. Magistrates have also been accused of failing to stop the hostile interrogation of a victim. A representative of the Community Law Centre at the University of Western Cape said she had heard magistrates describing rapes as "not bad" because the accused was the victim's partner. The Teddy Bear Clinic said that the "lack of sensitivity and knowledge" of court personnel led to "secondary victimisation" and, in some cases, the withdrawal of complaints. The article states that experts believe the solution lies in training. But according to the article, some magistrates “refuse to undergo training, claiming that they have nothing to learn, and others say they cannot accept training other than by the Department of Justice because they must be seen to be neutral and objective.”

Incidents such as these affect the credibility of our judicial officers, our courts and our entire judicial system.

I am aware that salaries and benefits are important to everyone – not least magistrates. With the removal of magistrates from the public service, the same provisions that apply to judges regarding the determination of salary and benefits now apply to magistrates. The whole purpose of an independent commission which investigates and makes recommendations is to limit the Executive’s role in determining salaries. In the Van Rooyen judgment the Constitutional Court held that “Judicial Officers ought not to be placed in a position of having to do this, or engage in negotiations with the executive over their salaries.”

We are, from the side of the Executive, fully aware of the issues flowing from the 2008 recommendations, which appear to be at the heart of the problem. As I’ve mentioned, whilst we are not unsympathetic, we must accept that an immediate adjustment could in certain instances mean a 100% increase in salary and benefits, which is simply not feasible. No country has an unlimited public purse, particularly in not a developmental state where there are constant competing demands on the fiscus and where socio-economic spending, such as on social security and health, is often literally a matter of life and death for the poorest of the poor.

As the Minister of Finance said in his Medium Term Budget Statement, government has a duty to cut or minimise costs and provide value for money to its citizens. We simply all have to tighten our belts. We have, with the 112 magistrates’ posts created in October last year, 2026 magistrates in total, in other words, there are significantly more magistrates than judges, so to extend the remuneration of judges to magistrates and or to extend benefits, such as a salary for life, to all magistrates is simply not feasible from a financial point of view.

One of the changes to the remuneration structure of the magistrates, which we have fully supported and that is now included in the latest determination that the President has submitted to Parliament for approval, is the increase from 60% to 70% of the basic salary component which constitutes the pensionable salary.

We agree, in principle, that adopting an approach that is based on a sliding scale as a way of reducing the salary gap between entry level magistrates and the highest paid judicial officers is the correct approach and that a measure which is aimed at curbing the widening of the salary gap between the lowest and the highest paid judicial officer appears to be a sound one. We are also fully aware of the views expressed by Justice Nkabinde when delivering judgment in the case of the Association of Regional Magistrates of Southern Africa and President of the Republic of South Africa and Others.

In addition, there have also been interaction and developments on the issues of medical aid benefits of magistrates as well as the adjustment of non-pension benefits for magistrates. We are also aware of the alleged disparity between the remuneration of magistrates and prosecutors. The Department has undertaken an analysis of the distinction between the remuneration of magistrates and prosecutors. The remuneration of magistrates is higher, compared to the entry-level remuneration notches of comparable levels in the prosecution service and Senior Management Service members. However notch progression in the latter two occupational classes informed by the change in the scope and job content, are higher than the remuneration of magistrates which is on a flat scale. This is in itself not an anomaly as the job content and scope of prosecutors who are in the senior management echelon is higher than the prosecutors who conduct prosecutions in court.

Programme Director,

I urge magistrates to engage with the Commission for the remuneration of public representatives. As magistrates are no longer civil servants they, like judges, are not employees. Any industrial action undertaken by judicial officers is improper and unbecoming the role and position of a judicial officer. Strike action does not promote and maintain the rule of law. Judicial officers are not employees and therefore the Labour Relations Act that provides for the protected participation in strikes or industrial action does not apply, making any such strike illegal.

As Greek statesman and poet, Solon, said in the year 600 BC: “Society is well governed when the people obey the magistrates, and the magistrates obey the law.” We hope that, in the interests of justice and the interests of the profession and the public, any future demands can be resolved through positive engagement in a spirit of goodwill.

Programme Director,

We know that greater legislative demands are being placed on magistrates, as they are on judges, in terms of the number of laws that have to be applied. However the department is continuously striving to improve the administration of justice with, for example, the appointment of court managers in all our courts to deal with many of the administrative functions previously performed by magistrates. There are 761 magistrates’ courts of which 387 are seats of the courts, 103 branch courts and 271 periodical courts. All district magistrates’ courts have either a court manager or in smaller courts, such as branch and periodical courts, an office manager per court. In total there are 298 court managers, with 56 vacancies. We also have area court manager per groups/cluster of courts – currently we have 71 and eight vacancies. At High Court level we currently have 17 court manager posts, with 2 vacancies and 17 Chief/Senior Registrars, with 3 vacancies. At Regional Court level we have 9 registrar posts, in other words one each at every Regional Court President seat, of which 7 are filled and 2 are vacant.

Additional magistrates posts have also been created. Magistrates that were appointed before 1998 will recall that the amalgamation of the Departments of Justice of the former TBVC States and Homelands with that of the Department of Justice of the old apartheid government only took place in 1997. From 1997 to 2002 a very tedious rationalisation process followed as many magistrates posts were identified as supernumerary, especially at senior level, with the result that these posts first had to be absorbed before new posts could be created. From 2003 to today, 227 new posts of magistrates at various levels were created, of which 133 were created during the current term of this Government. In this regard, I would like to convey my appreciation to the Magistrates Commission under the leadership of its Chairperson, Judge Legodi, for the way in which they have, without any additional capacity, put structures and processes in place to ensure that vacancies are filled as soon as possible. This has enabled the Minister to appoint 117 magistrates in 2013.

We are moving to fill all vacant posts and the interest in such posts is considerable. For example, 37 posts of Regional Magistrate and 60 posts of Magistrate were advertised in 2012. A total of 2288 individual applications were received in respect of this advertisement with ±80% of applicants applying for 5 or more posts. Of the applications received, 97 candidates were short-listed for the 37 posts of Regional Magistrate, while 143 candidates were short-listed for the 60 posts of Magistrate.

During the process it was noted by the Selection Committee of the Magistrates Commission that the majority of candidates who were short-listed for posts of magistrate and regional magistrate had more than 10 years’ post-university applicable court experience and it was for this reason that the Committee recommended that the experience requirement be raised to 7 years’ post university experience in respect of posts of Magistrate and to 10 years’ post university experience in respect of posts of Regional Magistrate.

The Magistrates Commission has also taking the initiative to be proactive by advertising magistrates’ posts that will become vacant within the next 6 months. This, together with the posts that have become vacant since the last round of advertisements and the new posts created by the Minister, means that the Magistrates Commission has advertised an unprecedented 308 magistrates posts. Processes are already underway to provide additional capacity to the Magistrates Commission with this mammoth task. With regards to the 308 positions which were advertised in November 2013, some 2500 new applications have been received and are currently being considered. We are therefore pleased to note that there is certainly no shortage of suitably qualified candidates who wish to serve as judicial officers.

Programme Director,

These are but some of the issues that we are discussing and should continue to discuss. Other issues that are on the table and which are receiving our on-going attention include matters such as the policy for the appointment of acting magistrates, the remuneration dispensation for the lower court judiciary and the progress and timeframes for the Lower Courts Bill.

In conclusion,

What the above illustrates is that we, from the side of government, are most certainly aware of the issues affecting our judicial officers and we are continuously striving to support judicial officers so as to ensure the independence, impartiality, dignity, accessibility and effectiveness of our courts.

I wish JOASA all the best for the coming year. We may not agree on all issues, but what is important is that all parties keep the channels of communication open and that all role-players engage, in good faith, to find solutions that are mutually beneficial. The crux of the matter really is this, namely that there are many issues which affect all of us, all the various role-players, on one level or another. Issues can and should be resolved by way of constructive engagement, not industrial action.

Ultimately for all of us within the justice family, whether it’s the Department or the Ministry, or the judicial officers or the Magistrates Commission or the Judicial Services Commission, it’s about serving the public and about administering justice to our people.

All of us must continuously remind ourselves that the Constitution places a duty on us all to assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. Our people deserve no less.

I thank you.