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Invitation to comment on the Amendment of Regulations for Judicial Officers in the Lower Courts regarding the leave dispensation of Magistrates

The Magistrates Commission has recommended that the Minister of Justice and Correctional Services amend the Regulations for Judicial Officers in the Lower Courts by introducing new provisions regarding the leave dispensation of magistrates

The following background information is relevant:
1.         The Magistrates Act, 1993 (Act No. 90 of 1993) (the Act), makes provision for the establishment, constitution, objects and functions of a Magistrates Commission (the Commission), the appointment and remuneration of, and vacation of office by, magistrates and that certain conditions of service of magistrates may be determined by regulation.  In terms of section 16(1)(b) of the Act, the Minister may, after the Commission has made a recommendation, make regulations, among others, regarding leave of absence of magistrates.

2.         Comprehensive regulations, which were largely based on the public service regulations (existing at the time), were promulgated shortly after commencement of the Act.  The existing regulations 38 to 38C provide for the leave of magistrates.  Regulation 38 provides that the provisions of Chapter C of the Public Service Regulations and Chapter D.II of the Public Service Staff Code apply mutatis mutandis to magistrates.  The Public Service Regulations have since been amended and in particular, the leave dispensation of public servants has been changed and has lessened the financial burden on the State relating to the payment of huge amounts for accumulated leave.  This was effected, firstly, by "capping" the accumulated leave of employees and, secondly, by introducing the principle that annual leave days not taken are forfeited, making it impossible to build up vast numbers of (newly) accumulated leave which must be paid out on termination of service.  Civil servants, on the other hand, benefitted from the conversion of leave from "calendar days" to "working days" which meant that weekends and public holidays falling in a leave period would not be reckoned as leave days.  This is not the case with magistrates who can accumulate leave and whose number of leave days includes calendar days.

3.         However, there has been growing recognition that it is neither appropriate nor desirable that the leave dispensation (and other conditions of service) of the Magistracy should mirror those of the Public Service, since the Magistracy forms part of the independent judiciary and should have a tailor-made dispensation reflecting and suited to their unique disposition as such.

4.         Any person wishing to comment is invited to submit written comments. Comments must be directed to Ms E Steyn at ensteyn@justice.gov.za or for the official’s attention at Private Bag X 81, Pretoria, 0001, or to fax number 0866485369, by not later than 12 October 2018.