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[2010] ZAECPEHC 17
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Claassen v President of the Republic of South Africa and Others (2338/09) [2010] ZAECPEHC 17 (6 May 2010)
IN THE HIGH COURT OF SOUTH AFRICA
REPORTABLE
(EASTERN
CAPE, PORT ELIZABETH)
Case No.:
2338/09
Date heard: 01 April
2010
Date delivered: 6 May
2010
In
the matter between:
JOHANNES
JACOBUS CLAASSEN
Applicant
and
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
INDEPENDENT
COMMISSION FOR THE REMUNERATION OF PUBLIC OFFICE -BEARERS
MAGISTRATES’
COMMISSION
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
JUDGMENT
KROON, J:
Introduction:
On 1 August 1997, the applicant was
appointed president of the southern divorce court. The appointment
was in terms of the then
s 10 of the Administration Amendment Act 9
of 1929 as amended by s 2 of the Special Courts for Blacks Abolition
Act 34 of 1986.
The applicant contends that he is
entitled to remuneration on the same scale as that applicable to a
regional court president.
He seeks a declarator to that effect and
further relief in the form of payment of a sum of money equal to the
difference between
the salary he received (which equated to that of
a regional magistrate) and the salary of a regional court president
over the three year
period immediately preceding the date on which the present
proceedings were launched.
1
The first, second and fourth
respondents are the President of the Republic of South Africa, the
Minister of Justice and Constitutional
Development and the
Magistrates Commission established in terms of
s 2
of the
Magistrates Act 90 of 1993
. They oppose the grant of the relief
sought by the applicant. The third respondent cited, the
Independent Commission for the
Remuneration of Public Office-Bearers
established in terms of
s 2
of Act 92 of 1997 (the Independent
Commission), did not enter the lists.
Relevant legislative history
The divorce courts were initially
established in terms of s 10 of the Administration Amendment Act,
their function being to adjudicate
matrimonial causes between Blacks
domiciled within their respective areas of jurisdiction (which did
not embrace the whole of
the country).
During the ensuing years, a large
number of amendments to the section were passed by Parliament and,
inter alia
,
the divorce courts were made accessible to all persons, the
operation of the Act was extended to the entire national territory
of the republic and the subject matter of the courts’
jurisdiction was broadened.
The provisions which are relevant for
present purposes are contained in s 10(3). The history of the
amendments effected to the
subsection since 1929, and the effect
thereof, was comprehensively debated, both in the papers as well as
in argument. It is
only necessary, however, to refer to one earlier
amendment before setting out the relevant wording of the subsection
as it presently
reads after the last amendments effected by the
Judicial Matters Second Amendment Act 55 of 2003
.
Part B of the Schedule to the Special
Courts for Blacks Abolition Act, after amending subsection (3) by
providing for the Minister
of Justice to determine how many
divisions a particular divorce court should have, substituted the
following new subsection
(3)(b):
‘
A division of the
court shall consist of a president who shall be appointed by the
Minister of Justice, at which appointment the
provisions of Chapter
II of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), are
mutatis
mutandis
applicable in so far as those provisions relate to a magistrate of a
regional division, and sittings of two or more divisions may
be held
simultaneously.’
(Chapter II of the
Magistrates’
Courts Act provides
inter
alia
for the appointment of
magistrates to the courts of regional divisions).
The present wording of subsection (3)
is as follows:
‘
(3)(a) Every such
court shall be a court of law and shall consist of so many divisions
as the Minister of Justice may from time
to time determine.
A division of the court
–
shall consist of one or
more presiding officers, one of whom shall be the president of the
division, who shall be fit and proper
persons appointed by the
Minister of Justice in a permanent capacity after consultation
with the Magistrates Commission; and
such persons shall for
the purposes of the Magistrates Act, 1993 (Act No. 90 of 1993) be
deemed to be magistrates of a regional
division as contemplated in
the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944).
………
.’
It is the interpretation to be
accorded to subsection 10(3)(b) that is the essential issue between
the parties.
For reasons that will appear later it
is also necessary to quote the terms of subsection (3A) of s 10
(inserted by Act 55 of 2003):
‘
Section 9 of the
Magistrates’ Courts Act, 1944, (Act No. 32 of 1944), relating
to the appointment of magistrates in an acting
or temporary capacity
is applicable with the changes required by the context in respect of
the appointment of acting or temporary
presiding officers of Courts
established under this section.’
Section 9(4)
of the
Magistrates’
Courts Act provides
in part as follows:
‘
(a) A magistrate
at the head of a regional division or a person occupying the office
of chief magistrate, including an acting chief
magistrate authorised
thereto in writing by the Minister, may –
whenever a magistrate,
additional magistrate or assistant magistrate is for any reason
unavailable to carry out the functions
of his or her office; and
in consultation with
the Minister or an officer in the Department of Justice and
Constitutional Development designated by the
Minister,
temporarily appoint any
competent person in the place of the magistrate concerned.’
Subparagraphs (b) and (c) limit the
period for which such temporary appointment or a reappointment
remains valid.
It requires to be pointed out further
that
s 9(1)(a)
empowers the Minister to appoint a magistrate, and
additional or assistant magistrates for every district as well as a
magistrate
or magistrates for every regional division. Paragraph
(aA) provides that the Minister may, in a particular case or
generally
and subject to such directions as he or she may deem fit,
delegate the power conferred on him or her in terms of paragraph (a)
inter alia
to a magistrate at the head of a regional division or a person
occupying the office of chief magistrate, including an acting
chief
magistrate.
The
Magistrates Act 90 of 1993
ushered in a new dispensation in respect of the determination of the
remuneration payable to magistrates.
Section 12
made provision for
the Minister of Justice, by notice in the Gazette, and after taking
certain administrative steps, to determine
the different salary
scales applicable to different categories of magistrates.
After two further amendments
introduced by
s 4
of Act 18 of 1996 and s 35 of Act 47 of 1997 a
new s 12 was substituted by s 3 of the Judicial Officers (Amendment
of Conditions
of Service) Act 28 of 2003. It reads partly as
follows:
(a) Magistrates are
entitled to such salaries, allowances or benefits –
as determined by the
President from time to time by notice in the Gazette, after taking
into consideration the recommendations
of the Independent
Commission for the Remuneration of Public Office-Bearers
established under section 2 of the Independent
Commission for the
Remuneration of Public Office-Bearers Act, 1997 (Act No. 92 of
1997); and
approved by Parliament
in terms of subsection (3).
Different categories of
salaries and salary scales may be determined by the President in
respect of different categories of
magistrates.
………
..
(3) (a) A notice issued
under subsection (1) (a) must be submitted to Parliament for approval
before publication thereof.
(b) Parliament must by
resolution –
approve the notice
whether in whole or in part; or
disapprove the notice
………………
(6) The remuneration of
magistrates shall not be reduced except by Act of Parliament.’
The Independent Commission was
established to make recommendations concerning the salaries,
allowances and benefits of various
public office-bearers. The
definition of ‘office-bearer’ in Act 92 of 1997 includes
a magistrate appointed in terms
of
s 9
of the
Magistrates’
Courts Act read
with
s 10
of the
Magistrates Act. The
definition
does not include a reference to a presiding officer in a division of
a divorce court.
Remuneration determinations made in
2008 and 2009.
The remuneration determinations,
referred to below, made by the President in terms of
s 12
of the
Magistrates Act were
duly approved by Parliament as required by
s
12(1)(a)
and (3).
By Proclamation 48 of 2008 (Gazette
No 31546 of 27 October 2008) the President determined, with effect
from 1 April 2008, the
total annual remuneration payable to various
magisterial office-bearers referred to in the schedule to the
proclamation, including
the following categories: Regional Court
President, Regional Magistrate and Chief Magistrate. While the
remuneration due to
a chief magistrate and a regional magistrate was
the same, that of a regional court president was higher. Also
included in the
schedule was a category designated ‘Presiding
Officer: Divorce Court’, notwithstanding that the definition
of ‘office-bearer’
in the Independent Commission Act
did not embrace that designation, and the total remuneration
determined in respect of that
category was the same as that of a
regional magistrate or chief magistrate.
The determinations in the preceding
paragraph were made despite the fact that as appears from Government
Notice 1107 of 15 October
2008 (Gazette No. 31513) the Independent
Commission had recommended that the remuneration of a presiding
officer in the divorce
court be equal to that of a regional
magistrate, but that the president of a divorce court receive
remuneration equal to that
of a regional court president.
In 2009 the recommendations of the
Independent Commission were of a similar ilk (Government Notice
1078 of 12 November 2009).
Again, however, the recommendations were
not echoed in the determinations made by the President and the
determinations published
in Proclamation 75 of 19 November 2009
(Gazette No. 32730) were that, with effect from 1 April 2009, the
total yearly remuneration
of a chief magistrate and that of a
regional magistrate would be the same but that of a regional court
president would be higher.
The schedule in this proclamation
contained no reference to any presiding officer in the divorce
court.
Assessment
Consistent with his contention that,
on a proper construction of s 10(3)(b) of the Administration
Amendment Act, his status and
rank, as a president of a division of
a divorce court, is equal to that of a regional court president, and
that he should be
remunerated accordingly, the applicant submitted
that the determinations made by the President referred to above,
offended
against the provisions of the section and were in fact
unconstitutional.
One aspect may shortly be disposed
of. Some attention was paid during argument to the circumstance
that as a matter of fact,
there are three divorce courts in the
country established in terms of s 10 of the Administration Amendment
Act and that each
only has one division with one presiding officer.
Suffice it to say that I do not consider that this circumstance adds
anything
to the debate.
Echoing the stance adopted by the
applicant in his papers Mr
Beyleveld
(who, with Mr
Moorhouse
,
appeared for the applicant) accepted that any recommendations made
by the Independent Commission had no binding force. That
attitude
was correct in law.
The crisp submission of counsel was,
however, that while the position of a presiding officer in a
division of the divorce court
was in terms of s 10(3)(b)(ii), deemed
to be equated in rank and status and for remuneration purposes to a
magistrate of a regional
division, a closer analysis of paragraph
(b)(i) and (ii) requires the further interpretation that the
president of a division
of a divorce court is deemed to be equal in
rank and status to a regional court president.
In pressing for the interpretation of
a more expansive deeming provision (ie including a provision that,
for the purposes of the
Magistrates Act, presidents
of a division
of a divorce court be deemed to be regional court presidents as
contemplated in the
Magistrates’ Courts Act) counsel
submitted
that discrimination against presidents of divorce court divisions
would otherwise result, which the legislature could
not have
intended. Put differently an intention to treat presidents of a
division of a divorce court as equal to regional court
presidents
must be imputed to the legislature.
Counsel submitted that the equality
contended for was underscored by the fact that just as regional
court presidents had certain
powers in terms of
s 9(4)(a)
of the
Magistrates’ Courts Act to
make temporary appointments of
magistrates (paragraph 11 above) so also the president of a division
of a divorce court had certain
‘corresponding’ powers in
terms of s 10(3A) of the Administration Amendment Act to make
temporary appointments of
presiding officers in a division of a
divorce court (paragraph 10 above).
At the same time the legislature
sought to differentiate between a president of a division of a
divorce court and another presiding
officer in such a division just
as there is a differentiation between a regional court president and
a regional court magistrate.
A differentiation between a regional
court president and a president of a division of a divorce court was
accordingly unfair
and unreasonable, and because the legislature is
presumed to intend fairness and reasonableness rather than
inequitability, the
interpretation contended for on behalf of the
applicant should be upheld.
I do not find the argument
persuasive. It may be pointed out that a chief magistrate similarly
has certain corresponding powers
to make temporary appointments of
magistrates, and moreover, as recorded in paragraph 12 above a chief
magistrate, like a regional
court president, can be given certain
delegated powers to make permanent appointments (a power which
cannot be delegated to a
president of a division of the divorce
court). Yet the remuneration of a chief magistrate, (like that of a
president of a division
of a divorce court), is equal to that of a
regional magistrate and lower than that of a regional court
president.
The intention of the legislature must
be sought in the language utilised by it in the provisions in
question, and according same
its ordinary grammatical meaning, seen
in the context of whole statute and associated enactments.
A textual analysis of s 10(3)(b)
reveals the following: if there is only one presiding officer in a
division of a divorce court
that officer serves as the president of
that division; if there are more than one presiding officer in a
division one of them
is to be president of the division; the
reference to ‘fit and proper persons’ in paragraph
(b)(i) is a reference
to the presiding officers appointed including
the presiding officer designated as president of the division; the
reference to
‘such persons’ in paragraph (b)(ii) is a
reference to the ‘fit and proper persons’ mentioned in
paragraph
(b)(i) and it is the ‘such persons’ who, for
the purposes of the
Magistrates Act (a
limited purpose) are deemed
to be magistrates of a regional division as contemplated in the
Magistrates’ Courts Act, ie
all presiding officers in a
division of a divorce court, including the one designated president
of the division. The position
remains the same as when the amended
subsection set out in paragraph 7 above was still on the statute
book, there being no indication
of any change of intention
thereafter.
In my judgment, the conclusion
recorded above reflects the clear meaning of the language in the
subsection and the intention of
the legislature. Had the
legislature intended that a president of a division of a divorce
court be deemed to be a regional court
president as opposed to a
puisne regional magistrate, it could very easily have said so. It
opted, however, to make its contrary
intention clear.
No doubt there were policy
considerations at play why the legislature chose to take the course
that it did, such as office complements,
work loads etc.
Mr
Goosen
,
who, with Ms
Rawjee
,
appeared for the respondents concluded his argument by a reference
to the provisions of the proposed
Jurisdiction of Regional Courts
Amendment Act 31 of 2008
. The purpose of the Act is to confer on
courts for regional divisions jurisdiction in respect of certain
civil disputes, including
matters regulated by s 10 of the
Administration Amendment Act. Provision is made that each divorce
court established under the
Administration Act becomes a court of a
regional division and that ‘any person holding office as a
presiding officer of
a divorce court shall hold office as a
magistrate of the regional division in question’. The Act has
not yet commenced,
but its terms fortify the conclusion I have
reached in this matter.
Order
The application is dismissed with
costs such costs to include the costs of two counsel.
______________
F
KROON
Judge
of the High Court
Appearances:
For
the applicants:
Adv Beyleveld &
Adv Moorhouse
Instructed by Brown
Braude & Vlok attorneys
Port Elizabeth
(Ref: C L Jessop)
For
the respondent:
Adv
Goosen & Adv Rawjee
Instructed by the State
attorney
Port Elizabeth
(Ref.Nr. 1670/2009/K)
1
The
applicant
accepts
that any claim in respect of a longer period is prescribed.