ConCourt sides with Zuma on magistrates' increases

President Jacob Zuma's decision to increase the salaries of regional magistrates and regional court presidents by five and not seven percent remained in place after a Constitutional Court judgment.

The court dismissed an application to confirm an order of the High Court in Pretoria that set aside Zuma's decision.

The Independent Commission for the Remuneration of Public Office Bearers had recommended a seven percent annual remuneration increase for all public office-bearers for the 2010/2011 financial year.

However, the Association of Regional Magistrates of Southern Africa (Armsa), which is believed to represent around 90 percent of regional magistrates in South Africa, recommended an across the board cost of living adjustment of 9.5 percent.

It raised concerns about an alleged lack of consultation and transparency, the annual cost-of-living increase, the gap between the lowest paid judge and the highest paid regional magistrate -- which was alleged to have widened to 20 percent -- and a far lower contribution to the magistrates' medical fund.

According to the judgment, Armsa submitted that the position of regional magistrates in relation to their remuneration had deteriorated to a basic salary component equal to 51.1 percent of a judge's basic salary, despite the increase in responsibility and workload, according to the judgment.

The Constitutional Court said in its judgment that the commission met the president to present its recommendation on September 8, 2010, after discussions with the finance minister.

The finance minister then advised the president that the recommended seven percent was not affordable for the fiscus given the inflation outlook and uncertainty related to conditions in European markets.

In November 2010, the president set the salary increase for all public office-bearers at five percent, with effect from April 1 2010, and, following approval by Parliament, published his decision.

Armsa challenged the decision of the president in the High Court in Pretoria on the grounds of irrationality and reviewable administrative action under the Promotion of Administrative Justice Act (Paja).

The high court upheld the irrationality ground, but rejected the challenge.

It set aside the decision and remitted it to the president for the decision to be taken afresh.

In the Constitutional Court, Armsa sought confirmation of part of the high court order in terms of section 172(2)(d) of the Constitution.

The commission opposed confirmation and sought conditional leave to appeal against the decision of the high court declaring the president's decision irrational.

The Constitutional Court, in a unanimous judgment, held that the determination by the president was "conduct" under section 172(2)(a) of the Constitution and therefore susceptible to confirmation.

It also decided the president's conduct was not administrative action reviewable under Paja.

The court said the decision involved input from various functionaries, at different levels of the process.

It found the president's decision to be "executive in nature" and more than a decision taken by the bureaucracy while carrying out the daily functions of the state.

The court also rejected Armsa's challenge that the decision was procedurally unfair, as it failed to show its representations were not taken into account by the commission when it made its recommendation to the president.

It found that the Magistrates Act did not require the president to hear magistrates before determining their salary increase.

The court further held that the president's decision was rational as there was no indication that the commission did not consider the different roles and responsibilities of magistrates.

"That recommendation must have accounted for certain factors and must be the product of consultation with various officials and organs of state with the relevant expertise and knowledge, including the Chief Justice and the finance minister," the court ruled.