An urgent court case by the Association of Regional Magistrates of South Africa (Armsa) about magistrates' salaries was removed from the roll on Tuesday after last-minute court papers from the Presidency made the litigation unnecessary.
Armsa had approached the urgent court asking it to order the president to act on the recommendations of a “major review” by the independent commission for the remuneration of public office bearers, on magistrates’ salaries, allowances and benefits. In its court papers, Armsa said the president’s failure to act for nearly nine months “undermines judicial independence and the rule of law”.
The magistrates courts are where the vast majority of litigation happens in South Africa. However, magistrates have for years been complaining that their conditions of employment have not kept up with their changing roles and responsibilities which have, over the years, expanded considerably.
But at the hearing, Armsa told the court it was removing the case from the roll because it had emerged — in court papers filed by the president a day earlier — that the president had sent the commission’s recommendations back to it. In his affidavit, Ramaphosa said the major review was different to the annual determination of office bearers' remuneration.
“It encompasses the entire system of remuneration of all public office bearers and is the result of years of research and consultation. Its recommendations will have far-reaching and long-term impacts on the fiscus, and the structure of remuneration in the state,” said Ramaphosa. On receipt of the review, he sought detailed input from the finance minister, he said.
It was impossible to deal with the recommendations piecemeal, he said. “I could not, even if there were no concerns affecting magistrates (and there are), make a determination for them to the exclusion of all other office-bearers,” he said.
“The reason for the referral back to the commission was that the issues with the review affect a number of other office bearers ... magistrates are only one category of the numerous office-bearers affected by the review,” said Ramaphosa in his affidavit.
But in court on Tuesday, Armsa’s counsel, Geoff Budlender SC, said Ramaphosa had sent the recommendations back as far back as July, yet “inexplicably” had not told Armsa about it.
If he had, there would have been no need for the litigation to continue, wasting the time of the lawyers involved and two judges in the process, said Budlender. “I must say I have never seen anything like [this], in any litigation,” he said. He asked the court to order the presidency to pay the costs of the wasted litigation.
The president’s counsel, Marumo Moerane SC, said the president was willing to pay the wasted costs of the day’s proceedings, but not all the litigation. Judge Gcina Malindi ordered that all the wasted costs be paid by the president.
The removal of the case and the president’s decision to send the recommendations back to the commission means magistrates face a further delay in a decision on an increase to their salaries.
Under the Magistrates Act, the commission makes an annual recommendation on magistrates’ salaries, allowances and benefits to the president, who then makes a determination, which is submitted to parliament. Parliament considers the determination and, if it accepts it, approves it and it is then published in the government gazette and takes effect.
In Armsa’s court papers, Kagiso regional court magistrate Hein Louw said the commission’s recommendations from its major review would “go a way to increase magistrates’ remuneration”.
Louw said adequate remuneration was “a crucial aspect of judicial independence”. Each day that the major review recommendations were not given effect to “undermines judicial independence and the rule of law”.
The major review was important because the commission is meant to consider various factors — including the “functions and responsibilities of the office-bearers concerned”. But the changed functions and responsibilities of magistrates were not dealt with in the annual reviews and were instead parked — to be considered in a “major review”.
But when it came to magistrates, the last time a major review’s recommendations were implemented was 2008. Since then, for 15 years, the commission had not considered how the functions and responsibilities of magistrates have changed over the years and only made recommendations based on inflation, said Louw.
Meanwhile the functions and responsibilities of magistrates significantly broadened: in 2010 magistrates got civil jurisdiction and no longer only heard criminal cases. The size of the claims that could be heard by the magistrates courts increased, and the size of the criminal fines that could be imposed on magistrates have also increased. In 2019, magistrates courts were given the authority to review administrative decisions.
The latest major review finally published its recommendations last year, said Louw. But even then, Armsa litigated before this happened. Only when a case was about to be heard did the commission publish the report.
Judge Frits Van Oosten said the “irresistible inference” was that it was the threat of a court order that prompted the commission to publish its recommendations.
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