Bold action over pay — magistrates
An organisation representing about 800 of the country’s magistrates is mulling whether to challenge their conditions of service and strike if their long-standing grievance over their salaries is not resolved before the end of the parliamentary term next month.
The Judicial Officers Association of South Africa (Joasa) has written to parliament’s bosses expressing frustration over the Independent Commission for the Remuneration of Public Office-Bearers dragging its feet on a review for magistrates.
In addition, the Association of Regional Magistrates of Southern Africa (Armsa) is suing the remuneration commission, President Cyril Ramaphosa and parliament for the failure of the commission to take into account the changing role, status and duties of magistrates when making annual recommendations over their salaries, allowances and benefits.
Both organisations accuse the commission, which has to report to the president, of delaying this “major review” despite the changes in their functions and jurisdictions.
The last review in respect of magistrates was in 2004, and its recommendations were implemented in 2008.
“Since 2008, therefore, the [commission] has dismally failed in its duty around embarking on the process of a major review to include all the public office bearers, in particular, the magistracy,” wrote Joasa president Neelan Karikan in a letter dated April 15 to acting National Assembly speaker Lechesa Tsenoli and National Council of Provinces chair Amos Masondo.
“Our members are seriously concerned about the commission’s confused state of mind, and their inability to resolve their own findings contained in the 2007/8 review reports where they conceded that the salary gap between the lowest level judge and highest level magistrate is too 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.”
He said “core problems” that magistrates face have been known to the commission since May 2004 when it commissioned a study into the issue.
The remuneration commission has to ensure judicial officers are adequately remunerated in line with the constitutional requirement of judicial independence, which includes financial independence, said Karikan. Remuneration became inadequate when the responsibilities of workers increased and no employer could expect employees to perform additional functions involving more responsibility and not immediately increase their salaries.
“The commission seems unconcerned that their actions will push magistrates towards industrial action again, and possibly impact negatively on the image of the judiciary and our country,” wrote Karikan.
He said that since the last major review, legislation had evolved to such an extent that most of the jurisdiction of the high courts had filtered down to the lower courts.
“We are doing matters that we’ve never done before, from divorces to PAJA [Promotion of Administrative Justice Act] and PAIA [Promotion of Access to Information Act] matters, to holding power to account in terms of government and all the different bodies that generally only the high court would [deal with].
“So if in the lower courts those are the aspects we are doing, why are we not being attended to appropriately? We are still being treated as if we are glorified clerks.”
Karikan said a major review is a proper assessment of the roles, functions and duties of a presiding officer and also entails a comparison study, not just nationally but internationally, to determine how magistrates and other public office bearers should be remunerated.
He said the assessment had to not only cover salaries but also other aspects such as pensions and security, which he said were becoming a major concern.
“Magistrates have to pay their own way in every fashion including security, but remember we are dealing with armed robbery, we are being threatened and our colleagues are getting killed.
“We have prosecutors who are very junior that appear in our courts but they are earning salaries and receiving benefits that are beyond the magistrates’. We have prosecutors who don’t even want to apply to join the judiciary or become a magistrate because their salaries way surpass ours,” Karikan said.
He said there were senior prosecutors in regional and district courts who were earning about R1.8m a year while magistrates earn just over R1m.
“It’s not that we want to earn like prosecutors, it’s just that we’ve been ignored and we are not being remunerated in the manner that we ought to be.”
Another problem was that while they are public office bearers, magistrates still fall under the government employees’ pension fund.
“They have not allowed us to form our own pension type of scheme. We contribute towards the pension fund from our salary every month.
“Our treatment and the treatment of judges is like chalk and cheese because judges don’t make any contribution towards any type of pension fund, and when they retire they continue to receive a full salary, which is not the case with us.”
Karikan indicated that while magistrates are not allowed to strike as they provide an essential service, Joasa members have been calling for industrial action as a last resort.
“The feeling on the ground is that we must do something drastic, something radical, something bold, something that will give attention to our plight.
“To do that means there is immense risk and obviously we don’t want to bring the judiciary into disrepute. That’s never our intention and we need to be guarded against that.”
In its application to the high court in Johannesburg, Armsa, which represents about 200 regional court magistrates, said that for about 15 years the commission had failed to take into account their changing role, status, duties and functions.
“Indeed, the commission has failed to consider all the factors it is required to take into account. It has primarily focused on inflation and affordability,” said Armsa president Ian Cox.
“It is well known that the roles, duties and responsibilities of magistrates have changed dramatically since 2008. For example, regional courts now have civil as well as criminal jurisdiction, and their penal and monetary jurisdiction has been significantly increased.”
The effect of the expanded jurisdiction of regional courts was that the workload and responsibilities of regional magistrates had increased significantly and the expertise required had become more demanding, he said.
According to Armsa, the commission commenced a major review for the judiciary and magistrates in 2017 or 2018.
“When representatives of magistrates have sought clarity on when recommendations will be made in light of their roles, duties and responsibilities, the commission has repeatedly stated this will be dealt with in the major review. However, the commission has refused or failed to indicate when such major review will be published.”
Spokesperson for the commission Peter Makapan said they were aware of the concerns raised by Armsa, and the commission was finalising its review. “The report is at the final stage and it has been submitted to stakeholders, including the lower courts remuneration committee designated to represent magistrates, for their final consideration before it can be submitted to the president.”
Makapan said the report would cover most issues including pensions and medical aid, but tools of trade and security were not part of the commission’s mandate.
The remuneration commission makes recommendations to the president, whose decision has to be approved by parliament.