The Ministry has noted various media reports regarding a possible strike by some magistrates due to unhappiness over their salaries.
At the outset it should be remembered that the salaries and conditions of service of magistrates are not determined by the Department of Justice and Constitutional Development (DoJCD). This is because the judiciary is independent. Magistrates are not public servants and they are not employed by the DoJCD.
Because the judiciary is independent, their salaries are determined by the President after having considered the recommendations of the Independent Commission for the Remuneration of Public Office-Bearers Act. Furthermore, Parliament must approve or disapprove the determination made by the President. The same procedure is followed in determination of the salaries of the judges.
In terms of sections 219(1), (2) and (5) of the Constitution, read with sections 8(4) and (5) of the Independent Commission for the Remuneration of Public Office-Bearers Act, 1997 (Act No 92 of 1997), the Independent Commission for the Remuneration of Public Office Bearers (Commission) is mandated to make annual recommendations relating to the salaries and/or the upper limits of the salaries, allowances, benefits, and resources required by Public Office-Bearers (POBs) to enable them to perform their respective duties effectively.
In terms of the Determination of Remuneration of Office-Bearers of Independent Constitutional Institutions Laws Amendment Act, 2014 (Act No. 22 of 2014) and the Magistrates Act, 1993 (Act No. 90 of 1993), the Commission is required to consult with the Minister of Justice and Correctional Services, the Minister of Finance and the Chief Justice or a person designated by him/her, prior to the recommendations being submitted to the President, Parliament, and the publication thereof.
Furthermore, the Commission is required to take into account varying inputs from stakeholders and consider certain factors before making its recommendations relating to the remuneration of POBs.
The Minister has raised his concerns regarding the delays with the annual increments of the Judiciary with the Chairperson of the Commission and it was also raised when we briefed Parliament’s Portfolio Committee on Justice and Correctional Services and the Select Committee on Security and Justice.
We further note media reports that JOASA is threatening to embark on strike action over the pay gap between magistrates and judges.
There are currently a total of 2024 posts of magistrates countrywide. It is important to mention that JOASA is not the only voluntary association representing magistrates, e.g. there is also the Association of Regional Magistrates of South Africa (ARMSA).There are also magistrates who are not members of any voluntary association.
JOASA is well aware that there is a Lower Courts Remuneration Committee, on which JOASA is represented, who communicates with the Commission on the annual salary adjustment of magistrates. In addition to the annual determination of salaries, the Commission is also busy with a major review which is being done on all office bearers. The Commission itself should be approached regarding the progress with this major review.
We are not unsympathetic to the issues raised by JOASA, it must be put on record that any proposed industrial or “strike” action undertaken by judicial officers would be improper and unbecoming the role and position of a judicial officer.
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. In the Van Rooyen judgment (2002 (5) SA 246) the Constitutional Court held that “judicial officers ought not to be put in a position of having to do this, or to engage in negotiations with the executive over their salaries. They are judicial officers, not employees, and cannot and should not resort to industrial action to advance their interests in their conditions of service. That makes them vulnerable to having less attention paid to their legitimate concerns in relation to such matters, than others who can advance their interest through normal bargaining processes open to them.” [par 139]
We must accept that judicial officers do not belong to trade unions, they are officers of the court and public office bearers.
We trust that, in the interests of justice, any future demands can be resolved through positive engagement in a spirit of goodwill.
Enquiries:
Mr. Chrispin Phiri
Spokesperson: Ministry of Justice and Correctional Services
081 781 2261
