JOASA SUBMISSIONS TO THE ICRPOB IN RESPECT OF THE 2013 REMUNERATION RECOMMENDATIONS
· The Judicial Officers Association of South Africa (JOASA) is a non-profit voluntary Association which represents approximately 1300 Judicial Officers of all ranks – Magistrates, Senior Magistrates, Regional Court Magistrates, Chief Magistrates and Regional Court Presidents. Submissions we make are mandated by these magistrates.
· JOASA has a duty to remind the Independent Commission for the Remuneration of Public Office Bearers (ICRPOB) of its responsibility and constitutional duty to make remuneration recommendations in accordance with the prescripts of section 8 of Act 92 of 1997, and not to make recommendations recklessly without proper investigation and inquiry into the role, status and responsibilities of the various levels of Judicial officers. Currently we see recommendations that reflect a failure on the part of the ICRPOB to comply with some or all of its obligations referred to in Section 8(6) of Act 92 of 1997. The remuneration recommendations for Magistrates are shockingly inappropriate in that no consideration has been given to the fact that some public servants working in courts earn salaries much higher than Magistrates although Magistrates are regarded as having a higher status and are factually the apex decision maker in Magistrates’ Courts.
· The Commission and its predecessors in the past made its remuneration recommendations based on mainly historical remuneration practices and levels. It has become necessary to conduct a review of the remuneration structure for Judicial Officers which would reflect a single Judiciary.
· It is apparent to the Lower Court Judiciary that after the second review report of the ICRPOB dated April 2008 that the ICRPOB has not fulfilled its mandate as we have been bombarded with CPIX related salary adjustments. The second review report of the ICRPOB dated April 2008 was a continuation of the first ambitious step by the Commission towards such a review when it published its report and recommendations for public office bearer remuneration in March 2007. The review not only addressed the many inequities that exist in the current system of public officer bearer remuneration, but also crafted a remuneration scheme that is in line with both the principles of constitutional democracy, and international best public office bearer remuneration practice.
· The March 2007 review and report established, for the first time, a remuneration philosophy for public office bearer remuneration, and comprehensive job profiles for each public office bearer position, through a process of multi-faceted and scientific job evaluation. This served as a strong basis for job grading, benchmarking, and ultimately for the determination of fair and appropriate pay levels and benefits for each of those positions.
· The remuneration of the judicial anchor was implemented as a result of the 2008 ICRPOB recommendations and the remuneration of judges was linked and adjusted accordingly. However this link was not implemented and/or extended to the Lower Court Judiciary that is Regional Court Presidents, Chief Magistrates, Senior Magistrates, Regional Court Magistrates and Magistrates.
· The second review report of the ICRPOB dated April 2008 further found “Magistrates have been remunerated in terms of the same salary, allowances and benefits structure as public servants until 2003, when they were included under the definition of “office bearers.” Despite their addition to the fold of public office bearers, their remuneration packages are however still composed similarly to those of ordinary public servants.
· The remuneration of the judicial office bearers needs to reflect an internal equity that is clearly defined, and fairly represents the judicial processes from the Constitutional Court to the District Magistrates Courts. On this basis, there needs to be a consistent philosophy and application of remuneration practice within the Judiciary.
· Magistrates have historically been regarded as separate from Judges. This means the Judiciary is not seen as one integrated authority. Much discussion has been held in the past over linking the salaries of Magistrates to those of Judges in the High Court. No link has been implemented thus far. A uniform remuneration structure including benefits and conditions of service should be developed and implemented for the entire Judiciary. Pay lines therefore are to be developed based on the anchoring of the remuneration of the Chief Justice with a sliding scale moving down the judicial hierarchy through to the District Magistrate. This appears to be the most logical approach if the Judiciary is to be viewed as inclusive of the Magistrates”
· JOASA would recommend that the ICRPOB should act on the 2008 findings and recommend that the link which exists from the anchor (Chief Justice) to the lowest Judge be continued to the lowest magistrate to give effect to our constitution and reflect a single Judiciary.
· The percentage drop in remuneration from top to bottom must be uniform.
· This will not only enhance the office of the Magistracy but also eliminate the perception that Magistrate’s remuneration packages are still composed similarly to those of ordinary public servants. Although this position was recognized by the ICRPOB in the 2008 report it has never been implemented.
· A major concern is the unjustified differences in the elements of the total remuneration package between Magistrates and Judges which should be rectified as a matter of urgency. The total remuneration package of Judges includes a cash annual salary of 72, 24% and a non-cash component of 27, 76% which is, however, paid in cash to Judges. The total remuneration package of Magistrates includes a basic salary of 60%, an employee’s pension benefit contribution to the GEPF (7, 8%) and a flexible portion (32, 2%).
· Judges do not contribute to a pension fund and qualify for salary for life while Magistrates contribute to the Government Employees Pension Fund (GEPF) at a rate of 7, 5% of their basic salary and a further 7, 8% of their total remuneration package which represents 12, 3% of their total remuneration package. Although the ICRPOB recommended long ago that Magistrates be removed from the GEPF, this has not been implemented.
· Magistrates have to fund a motor vehicle from the flexible portion of their total remuneration package while a state vehicle is made available to a judge entirely at states costs in terms of section 12 of the Judges’ Remuneration and Conditions of Employment Act, No. 47 of 2001. Judges receive a petrol card from the state to cover all petrol costs for private and business use, whilst a magistrate receives no petrol card and is not reimbursed petrol costs especially for private travel. These benefits should also be extended to Magistrates.
· Magistrates fund 100% of a premium to a medical scheme from the flexible portion of their total remuneration package while judges are ex officio members of PARMED of which two thirds of the monthly premium is subsidized by the State. The cumulative effect is that the discrepancies are higher than reflected above, e.g. with regard to pension, medical aid and motor vehicle benefits.
· It is recommended that the ICRPOB, request the President to, under the powers vested in him by section 1(f) of the Parliamentary and Provincial Medical Aid Scheme Act, 1975, as amended, approve that the office of magistrate, falling within the definition of “office-bearer”, be promulgated as an office for the purpose of the latter Act by proclamation in Gazette and that two thirds of the monthly premium be subsidized by the State in accordance with the dispensation applicable to Judges. The two thirds should not be payable from Magistrates’ total remuneration package.
· The non-taxable allowance of R3,500 pa (R291.67 pm) payable to Judges in terms of section 2(b) of the Judge's Remuneration and Conditional Employment Act, 2001, should also be extended to Magistrates.
· The ICRPOB should further recommend the extension of the benefit under Section 8(1)(d) of the Revenue Act to Magistrates as was done in respect of Judges during 2009 by Proclamation by the President. Magistrates included by such Proclamation would be eligible for the deduction of R120000-00 against their taxable income.
· Until a separate pension fund is established for Magistrates, the pensionable portion of their salary should be increased from the current 60% to the 72,4% allocated to Judges alternatively to 70% which is similar to that of SMS members (civil servants) of the GEPF. The SMS (Senior Management Service) members who are members of the GEPF as at 31 March 2012 were given a once off choice to change the pre-April 2012 60%/63% basic salary to 70% in the SMS package. Provisions should be put into place to provide Magistrates also with this once off choice to change the pre-April 2013 60% basic salary to 70%/72,4%.
· The Constitutional Court judgment delivered on 23 May 2013 in ARMSA v President of the Republic of South Africa affirmed (1) that Magistrates form a vital part of the judiciary; (2) that adequate remuneration is an aspect of judicial independence; (3) that the Judiciary should not be put in a situation of having to negotiate with the executive about remuneration. That it is accordingly important that Magistrate’s conditions of service including remuneration are adequate and consistent with our Constitution. The current draft recommendations of the ICRPOB fail to take heed of the judgment by the Constitutional Court.
Nazeem Joemath
President: JOASA
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