President of ARMSA, Mr Makamu
Members of the Executive Committee of ARMSA
Ladies and gentlemen,
The Constitution has brought about profound change.
We have changed from an oppressive and dehumanizing way of living to a human rights-based culture and to a society which values freedom, dignity and equality.
We have changed from a system of parliamentary sovereignty to a constitutional dispensation where every action and every exercise of public power can, and should, be measured.
These changes did not come about easily.
As renowned abolitionist and social reformer, Frederick Douglass, remarked: “If there is no struggle, there is no progress.” And struggled we have. From painstakingly breaking down the remnants of apartheid, to building new democratic institutions, passing new legislation to embody our constitutional values and strengthening all branches of the State to ensure better delivery to all.
The magistracy have been part and parcel of these changes. From formerly being public servants to becoming independent judicial officers, the past 25 years have brought about significant changes to our magistracy and our Magistrates Courts. The magistracy have come a long way.
Section 1(2) of the Public Service and Pensions Act of 1912 provided that magistrates formed part of the public service.
By contrast, section 1(6) specifically excluded judges from the public service.
That remained the position under successive iterations of the Public Service Act up to and including the Public Service Act of 1984.
The Centre for the Study of Violence and Reconciliation writes that magistrates under apartheid were usually appointed from the ranks of the public service rather than the legal fraternity. The majority were former prosecutors from the Department of Justice.
Importantly, the CSVR notes that the existence of executive magistrates was incompatible with the doctrine of the separation of powers.
Magistrates received directives from the Department of Justice and the Public Service Act contained provisions which included the regulation of conditions of service, periods of service, discipline, retirement, discharge and dismissal of magistrates.
Since 1944 the then Minister of Justice made the appointment of magistrates. Later on this power was delegated by the Minister to an officer in the DOJ.
The independence of magistrates, says the CSVR, was severely compromised, they could be transferred without their consent, they were dependent on merit assessments for promotion and could face an inquiry by the executive into charges of inefficiency or misconduct such as “disobeying a lawful order”. They performed both administrative and legal functions.
Importantly, they were perceived as being politicised. Stephen J Ellman, writing about law and liberty during states of emergency, says that the bulk of political trials were heard not by judges, but by magistrates.
Today magistrates are judicial officers in the true sense of the word.
The Hoexter Commission of Enquiry recommended that magistrates be removed from the ambit of the public service and that their appointment, discipline and discharge be dealt with by advisory bodies consisting of judicial officers.
This led to the enactment of the Magistrates Act in 1993. It marked a significant development in regard to the position of magistrates.
It established the Magistrates Commission as an independent body, charged with ensuring that the appointment, promotion, transfer and discharge of magistrates takes place without favour or prejudice.
Magistrates are now appointed by the Minister after consultation with the Magistrates Commission and the Commission is also responsible for the shortlisting and interviewing of applications.
In terms of section 12 of the Magistrates Act, the Independent Commission for the Remuneration of Office Bearers (IRC) has the statutory mandate to make recommendations to the President regarding salaries, remuneration allowances and benefits of judges and magistrates, which must be approved by Parliament.
The magistracy, through its various structures, now engage directly with the IRC.
It is trusted that the outcome of the major review by the IRC on the remuneration of the judiciary – which includes a review of the pension and medical aid benefits for magistrates will result in a dispensation that will be commensurate with the stature, role and responsibilities of the magistracy.
Both the Minister and I have informed the IRC of the importance of reducing the salary gap between magistrates and judges.
As you are aware, the main intention with the new leave dispensation for magistrates is to move away from public service prescripts in so far as they still apply to magistrates, so as to further enhance the independence of the judiciary.
It was our intention to implement the new leave regulations with effect from 1 January 2019.
As the leave regulations have financial implications the concurrence of the Minister of Finance is required.
The Finance Minister raised a number of issues which have since been addressed. Therefore, should he now concur, it could then be gazetted for implementation on 1 April 2019.
I have also been informed that the draft Financial Instructions for Magistrates have now been completed and that I will soon be briefed on it with a view to give the go-ahead to engage with National Treasury. If approved, it will further de-link magistrates from public service prescripts.
Judicial officers should not to belong to trade unions as they are officers of the court and public office bearers. Yet, we still find magistrates belonging to trade unions and pursuing matters in the CCMA. It’s as if some magistrates have not yet made the mind shift away from a traditional employee position to that of an independent judicial officer.
In the matter of Khanyile the question arose whether a magistrate is an employee and therefore entitled to rely on the protection afforded by labour legislation. In this case, the Labour Court made it clear that magistrates cannot have the status of employees due to the fact that the Constitution requires the judiciary to be independent.
In the Du Plessis case, the CCMA stated that a magistrate who referred an unfair labour practice dispute to the CCMA was not an employee and therefore not entitled to rely on the dispute resolution mechanisms established by the Labour Relations Act.
In the Van Rooyen case, the Constitutional Court noted that magistrates are not entitled to engage in collective bargaining due to their judicial independence.
The statutory processes of disciplinary steps against a magistrate are sui generis in nature and provide for procedurally and substantively fair procedures and processes.
The protection afforded to magistrates in terms of these statutory provisions means that it often takes an inordinate amount of time to finalise misconduct proceedings and, if necessary, to remove a magistrate from office.
Added to that, statutorily prescribed minimum timeframes, procedural challenges and delaying tactics on the part of some magistrates cause further lengthy delays.
For example, in one of the misconduct matters still pending before the Magistrates Commission, the charge sheet was served on the magistrate in 2013 and after more than five years the matter has still not been finalised.
One has to consider what effect this has on the public’s perception of the magistracy – and ultimately their confidence in judicial independence and the justice system as a whole.
The public expects the highest standards of conduct from our judicial officers. As Chief Justice Mogoeng Mogoeng said last year –
"Lack of public confidence in the judiciary has the potential of eroding the moral authority of the judiciary."
The doctrine of separation of powers, the independence of the judiciary and the supremacy of the Constitution lie at the heart of South Africa’s constitutional democracy.
Steps have already been taken to affirm the judiciary’s independence. The Constitution 17th Amendment Act and the Superior Courts Act were both enacted within the broader context of rationalising the structure and management of the superior courts and court administration. It affirmed the Chief Justice as the head of the judiciary, exercising responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts. The Superior Courts Act of 2013 sets out what these judicial functions are.
In 2013 Chief Justice submitted to the then Minister of Justice and Constitutional Development a report, setting out the views of the judiciary on the subjects of judicial governance and court administration, which was subsequently submitted to Cabinet. Cabinet thereupon appointed an Inter-Ministerial Committee on Judicial Governance and Court Administration to articulate a policy position of government on the future of judicial governance and court administration.
Currently, South Africa has a unique court administration model.
At the heart of this model, lies the acknowledgment of the roles of both the Minister of Justice as well as the Chief Justice in relation to court administration. This model has been encapsulated in Chapter 3 of the Superior Courts Act read with Chapter 8 of the Constitution.
The passing of the Constitution 17th Amendment Act and the Superior Courts Act also pave the way for the transformation of the magistracy and its full integration into the judiciary.
We are close to finalising replacement Bills for the Magistrates Act of 1993 and the Magistrates Court Act of 1944.
Initially the substitution of the archaic Magistrates' Courts Act, 1944, was considered to be the main focus area of this transformation initiative and work started in all earnest on a new Lower Courts Bill (LCB). Although an advanced draft of the LCB was prepared early in 2016, it was decided to approach interested parties – in particular, the magistracy - regarding the development of the broader policy directives associated with this transformation initiative.
This led to the distribution, towards the end of 2016, of a document entitled "Draft Framework: Lower Courts Restructuring" to representatives of the magistracy and comprehensive comments were submitted by the end of the first quarter of 2017. Having considered the comments, the Department continued to develop the LCB.
However, it was clear that certain changes also needed to be made to the Magistrates Act, especially in regard to the appointment of magistrates, the composition of the Magistrates Commission and (at the time, in accordance with proposals supported by the magistracy) the procedures relating to the lodging and adjudication of complaints against magistrates.
A draft Magistrates Amendment Bill (MAB) was consequently developed which, among others, duplicated the complaints mechanism for judges in respect of the magistracy.
However, in August 2017, it was decided that the Magistrates Act should be replaced by new legislation, as opposed to merely being amended to address specific issues. In other words, a comprehensive new Act is required.
Early in 2018, copies of the above draft Bills were made available to the magistracy, and comments were invited. It was clear that the magistracy were particularly interested in the provisions of the new draft Magistrates Bill, and they reiterated certain long-standing demands pertaining to their status and conditions of service.
I would like to give recognition to the fact that our regional courts are carrying an increased case load, more than they did in the past, given that civil matters, divorces and now matters relating to PAIA, PAJA and PEPUDA fall within the domain of our regional courts.
But there are also concerns regarding the performance of some of our regional courts: for example, how is it possible that one regional court magistrate in the Eastern Cape can clock an average of 05:00 court hours a day and finalize more 8,3 civil matters per day, whilst another regional court magistrate in the same province only does an average of 02:08 court hours per day, and finalises only 0,16 criminal cases per day and no civil matters.
Another regional court magistrate in Gauteng only finalised 6 criminal cases in a year and recorded an average of only 24 minutes of court time per day.
Although our judiciary and magistracy have been vastly transformed since the advent of democracy and as we are moving closer towards the concept of a single judiciary, there are still differences between magistrates and judges, and between higher courts and lower courts. We cannot ignore these differences.
The higher courts have been granted the inherent power of judicial review. If, in the opinion of the higher courts, legislation or the conduct of government is contrary to the Constitution, the higher courts have the authority to nullify that act, provided that the order must be confirmed by the Constitutional Court. Thus, these courts stands as the final arbiter of the Constitution.
Magistrates Courts do not have jurisdiction to deal with administrative reviews or constitutional matters where the legislation or conduct of the government is disputed.
The principle of stare decisis, or the doctrine of precedent, requires courts to follow the decisions of higher courts in the judicial hierarchy. This means that the ability to set precedents or to be bound by them, will differ - depending on whether it is a higher court or a magistrates court, as decisions of magistrates courts set no precedents.
Yet, despite these differences, the Constitution not only recognises that all our courts are independent and impartial, but also provides important institutional protection for courts.
Ladies and gentlemen,
To conclude, the role of judicial officers in our quest for freedom and equality cannot be over-emphasized – often the only one standing between a vulnerable person and a great injustice is the judicial officer.
Justice means making sure that people are heard when they go to court.
Justice means giving people hope in the belief that they will be treated fairly and reasonably and with dignity.
Justice means the protection of rights and the conviction of wrongs.
Our Magistrates’ Courts are at the forefront of people’s interaction with the law and the justice system and some 31 of our magistrates – 17 of them regional magistrates - have gone on to be appointed as judges.
At a time where words like “kickback”, “bribe” and “capture” feature almost daily in the media, ethical conduct and adherence to the rule of law are more important than ever.
As Indian author, Arundhati Roy, said:
“The crisis of modern democracy is a profound one. Free elections, a free press and an independent judiciary mean little when the free market has reduced them to commodities available on sale to the highest bidder.”
Ultimately, for a judicial officer – indeed for all of us who work in any of the branches of State - there should only be 3 considerations: upholding the Constitution, upholding the law and serving the public.
I also wish to express our appreciation to you. I know that many people don’t always see the long hours - late at night, and on weekends - that many of you spend writing judgments or catching up on work.
Many people don’t know about the sometimes challenging conditions that you have to face in your courtrooms or of the harrowing facts of some of the criminal cases you have to preside over, but we do know and we want to express our appreciation and assure you of the continued support of our Department.
I wish you all a very productive and successful conference.