Gibbs and Others v Minister of Justice and Constitutional Development and Others (234/2008) [2009] ZASCA 73; [2009] 4 All SA 109 (SCA) (1 June 2009)

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[2009] ZASCA 73
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Gibbs and Others v Minister of Justice and Constitutional Development and Others (234/2008) [2009] ZASCA 73; [2009] 4 All SA 109 (SCA) (1 June 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No:
234/2008
W W GIBBS
and 23 OTHERS
APPELLANTS
and
MINISTER OF
JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
& 5 OTHERS
RESPONDENTS
Neutral
citation
:
Gibbs v
Minister of Justice
(234/08)
[2009] ZASCA 73
(1 June 2009)
Coram: NAVSA,
BRAND
JJA, HURT, GRIESEL and BOSIELO AJJA
Heard:
11
May 2009
Delivered: 1
June 2009
Updated:
Summary:
Principle
of legality ─ Interpretation and application of statutory scheme ─
Public Service Act 111 of 1984 ─ Public Service
Act 103 of 1994─
Magistrate’s Act 90 of 1993
─ Regulations ─ whether system of
merit awards previously applicable to certain Magistrates, continue
to have legal validity
─ no legal basis for awards which, in any
event, militate against judicial independence and constitutional
values.
_______________________________________________________________________
____________________________________________________________________________________
ORDER
On appeal from:
High
Court Pretoria (Botha, Rabie JJ and Fabricius AJ sitting as court of
first instance).
The
appeal is dismissed with costs, such costs to include the costs
occasioned by the employment of two counsel
.
JUDGMENT
___________________________
__________________________________________
NAVSA JA
and BOSIELO AJA: (BRAND JA, HURT and GRIESEL AJJA concurring)
INTRODUCTION
[1] The
question in this appeal is whether senior magistrates and magistrates
(including the 24 appellants) are legally entitled
to continue to be
considered for and receive merit awards as part of their conditions
of service.
1
The present appeal is against a decision of a Full Bench of the
Pretoria High Court, sitting as a court of first instance, which

decided the question against the appellants.
BACKGROUND
[2] In 1984,
by virtue of s 36 of the Public Service Act 111 of 1984 (the PSA), a
public service staff code was promulgated,
2
in terms of which categories of public servants could qualify for
merit awards. The purpose of merit awards is set out at the
commencement of chapter B.XII of the staff code under the heading:
‘SPECIAL RECOGNITION FOR SUSTAINED ABOVE-AVERAGE JOB PERFORMANCE,

FOR EXCEPTIONAL EFFICIENCY AND FOR AN EXCEPTIONAL ACHIEVEMENT,
INVENTION, IMPROVEMENT, ETC.’ The purpose of merit awards is set

out as follows:
‘
To grant special
recognition (within the context of the rank) to officers and
employees who have distinguished themselves from their
peers through
sustained above-average work performance.’
The system
was intended to act as an incentive toward above-average performance.
[3] Prior to
1994 magistrates were appointed in terms of the PSA and as such were
public servants, in effect derogating from their
judicial
independence.
3
Senior Magistrates and Magistrates could thus be considered for merit
awards. During this period magistrates were responsible for
various
duties including administration. This involved performing
extra-judicial duties of an administrative nature not only for
the
Department of Justice but for other Government departments, including
the collection of revenue, the processing and payment
of social
benefits, the processing and administration of labour contracts.
[4] In being
considered for merit awards magistrates would be evaluated and,
depending on their performance, would be classified
in either
category A or B. Magistrates who fell under category A were entitled
to 18% of their annual salary whilst those who fell
in category B
were entitled to 10% of their annual salary. They would then be paid
the cash equivalent of these percentages.
[5]
The
relevant provisions of the Magistrates Act 90 of 1993 (the MA) came
into operation on 11 March 1994.
4
The MA provided for the appointment of magistrates by the Minister
after consultation with the Magistrates Commission.
5
It heralded a new era in line with the
Constitution to ensure and promote an independent judiciary.
Magistrates were no longer required
to perform any administrative
functions and their duties were confined to judicial and
quasi
-judicial work.
[6] The PSA
was repealed by the Public Service Act 103 of 1994 (the 1994 PSA),
which came into operation on 3 June 1994. Section
42 of the 1994 PSA
made provision for a public service staff code which was promulgated
in terms identical to the one that it replaced.
On 1 July 1999 the
Deputy Director-General: Public Service and Administration gave
notice that the Minister for the Public Service
and Administration
had, in terms of the provisions of the 1994 PSA, withdrawn the Public
Service Staff Code with effect from 1 July
1999, subject to the
provisions of Public Service Regulations. The Public Service
Regulations were published on 1 July 1999
6
and provided for transitional arrangements. More particularly in
respect of the present dispute, it provided that evaluations for

merit award purposes would continue until 31 December 2000, unless a
state department was ready to implement performance management
and
development schemes, in which event the merit award system would
cease on an earlier date.
[7] The
result of the aforegoing was that in the public service, excluding
the magistracy, the system of merit rewards was replaced
by
performance management and development schemes.
[8] Alongside
this statutory progression, material provisions of the MA must be
considered. Section 11, under the heading ‘Conditions
of service of
magistrates, except salary and vacation of office’, stipulates:
‘
Subject to the
provisions of this Act, the conditions of service of a magistrate
shall be determined in accordance with the regulations
under section
16.’
[9] Section 18(3) of the
MA provides:
‘
The conditions of
service applicable to a person referred to in subsection (1)
immediately before the date of commencement of section
12, shall not
be affected to his or her detriment, and no such condition of service
shall, after such date, be construed or applied
in a manner which is
less favourable to the person concerned than the manner in which it
was construed or applied immediately before
the said date.’
Section 12
came into operation on 11 March 1994. Section 18(3) was clearly
intended to be protective of the established legal rights
of persons
appointed as magistrates prior to that date.
7
[10] In 1998
the Independent Commission for the Remuneration of Public Office
Bearers Act 92 of 1997 came into operation. The Commission
was
empowered to make recommendations concerning the salaries, allowances
and benefits of public office bearers including judges
and
magistrates. Section 12(1)
(a)
of the MA provides:
‘
Magistrates are
entitled to such salaries, allowances or benefits─
(i) 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 92 of 1997); and
(ii) approved by
Parliament in terms of subsection (3).’
8
[11] Section
19 of the Judicial Officers (Amendment of Conditions of Service) Act
28 of 2003, which commenced on 1 November 2003,
provides:
‘
Subject to subsection
(2), any remuneration, including any annual salary, salary, allowance
or benefit accruing immediately before
the commencement of this Act
to a magistrate … is deemed to have been determined in accordance
with─
(a)
section 12 of
the Magistrates Act, 1993 (Act 90 of 1993)…,
(b)
…’
9
[12] Notwithstanding
(a) the abolition in 1994 of the non-judicial duties of Senior
Magistrates and Magistrates; (b) that the public
service staff code
no longer applied after 31 December 2000; (c) that the President had
not in terms of s 12 of the MA made any
provision by notice in the
Gazette for merit awards; and (d) that the regulations contemplated
in s 11 of the MA do not provide
for merit awards, the Department of
Justice continued with a system of evaluations for the purposes of
these awards. This is in
itself mystifying. There were no longer
administrative performances to assess. It would be anathema if what
was being evaluated
was judicial work. The affidavits filed on behalf
of the parties were not enlightening on this aspect.
[13] From
1994 to 1996 the department was involved in ‘evaluations’ for the
purpose of merit awards. Since 1997 the department
was not involved
in such evaluations. From that date magistrates evaluated themselves
until 2004 when the problem that gave rise
to the present appeal
reared its head. The limited information provided by the parties
indicates that evaluations were finally
approved by provincial
evaluation moderating committees.
[14] During
November 2004 the Magistrates Commission resolved that the merit
award system for magistrates should be abolished, noting
the
criticisms that this system had attracted over a long period of time
and recording that these awards were inconsistent with
judicial
office. Furthermore, the Commission, apparently intent to ensure that
in effect Senior Magistrates and Magistrates were
not financially
prejudiced, decided to recommend to the Minister that a motor vehicle
financing benefit that had hitherto not being
extended to Senior
Magistrates and Magistrates should now be afforded to them. It is
recorded by the Magistrates Commission that
the value of the motor
vehicle financing benefit would be ‘at least equal to an A category
merit award classification’. This
decision was communicated to the
second respondent, the Director-General of the Department of Justice
and Constitutional Development.
This led to a flurry of
communication, both internally within the department and between
magistrates and the department. At one
stage the State law advisor
was involved.
[15] On 5
November 2004 the President, acting in terms of s 12 of the MA,
determined the salary and benefits of magistrates. No
provision was
made for merit awards neither was provision made for a motor vehicle
finance scheme for magistrates and senior magistrates.
On 24 November
2005 the President issued a proclamation determining the salaries and
benefits of magistrates with effect from 1
April 2005 including the
motor vehicle finance scheme. Once again, no provision was made for
merit awards.
[16] During
2004/2005 all the appellants and presumably other magistrates of
similar rank were ‘evaluated’ for the purpose of
merit awards. In
monetary terms a category A evaluation would have yielded a financial
benefit in an amount of R46 543.68 whilst
a category B evaluation
would have yielded an amount of R25 857.60. After the evaluation
process numerous enquiries on behalf of
the appellants concerning the
payment of these benefits came to nought.
[17] On 15
February 2005 the second respondent decided, on behalf of the
Department of Justice and Constitutional Development, to
terminate
the payment of merit awards. It is that decision that led to two
applications in the Pretoria High Court for an order,
inter alia,
declaring the system of merit awards to be lawful and to form part of
‘the remuneration’ of Senior Magistrates
and Magistrates. These
were consolidated and were heard before a Full Bench of the Pretoria
High Court.
[18] As
stated above the application was unsuccessful. The court below
rejected the submission on behalf of the appellants that
they and
other magistrates were entitled to a hearing before the decision to
terminate the merit awards was taken. Botha J, writing
for the court
below, held that merit awards could rightly be considered to have
formed part of the conditions of service of Senior
Magistrates and
Magistrates. Before us that conclusion was not challenged.
[19] The
court below concluded that there was no statutory basis for the
payment of merit awards. Furthermore, it held that, because
of the
provision of a motor vehicle finance benefit, the magistrates had not
been detrimentally affected. In the view of the court
below the
failure of the second respondent to provide the magistrates with a
hearing did not affect the legality of his decision.
The appellant’s
reliance on the doctrine of legitimate expectation, as referred to in
Administrator, Transvaal and Others v Zenzile
and Others
1991 (1) SA 21
(A) at 34F-G, was
unsuccessful.
[20] The
first and second respondents, the Minister of Justice and
Constitutional Development and the Director-General, contest
the
appellants’ assertion of a right to continue to be considered for
and to receive merit awards, primarily on the basis of
the principle
of legality.
[21] In my view, this challenge is well-founded.
In
Fedsure Life Assurance Ltd v
Greater Johannesburg TMC
[1998] ZACC 17
;
1999 (1) SA 374
(CC)
at para 56 the following appears:
‘
[I]t is a fundamental
principle of the rule of law, recognised widely, that the exercise of
public power is only legitimate where
lawful. The rule of law ─ to
the extent at least that it expresses this principle of legality ─
is
generally understood to
be a fundamental principle of constitutional law.’
10
[22] There
is no statutory or other legal foundation for merit awards for
magistrates. Furthermore, the relevant parts of s 165
of the
Constitution are material and they provide as follows:
‘
(2) The courts are
independent and subject only to the Constitution and the law, which
they must apply impartially and without fear,
favour or prejudice.
(3) No person or organ of
state may interfere with the functioning of the courts.
(4) Organs of state,
through legislative and other measures, must assist and protect the
courts to ensure the independence, impartiality,
dignity,
accessibility and effectiveness of the courts.
(5) ...’
[23] Merit
awards in which the Department of Justice was historically involved
detract from the judicial independence that the Constitution
demands.
The criticisms over the years concerning merit awards and how they
lend themselves to potential pressure by the executive
are justified.
Judicial officers should not require incentives to comply with their
oath of office and their constitutional obligations.
The Magistrates
Commission and the respondents cannot be faulted for their decisions
to put an end to merit awards. If anything,
they should be commended
for doing so.
[24] In
addition to what is set out in the preceding paragraphs there are
further considerations. Awards that historically were
awarded in
relation to administrative tasks are now sought by the appellants,
notwithstanding that those tasks have since been
abolished. This
militates against the most fundamental constitutional values of
accountability, responsiveness and openness. As
stated above, there
is a paucity of information concerning the basis for the
‘evaluations’. We are baffled by what was in fact
evaluated. That
the magistracy itself was responsible for the evaluations is an added
negative feature.
[25] The
reliance by the appellants on
Zenzile
is misguided. That case referred to the decision of this court in
Administrator, Transvaal, and Others v Traub
and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at
748G.
11
In the latter case, it was held that when a statute empowers a public
body to give a decision prejudicially affecting an individual
in his
liberty or property or existing rights, the individual has a right to
be heard before the decision is taken unless the statute
expressly or
by implication indicates the contrary. This is usually expressed as
the doctrine of legitimate expectation which relates
to the
audi
alteram partem
principle. In
Meyer
v Iscor Pension Fund
2003 (2) SA 715
(SCA) at
731J-732A the following was said:
‘
According to the
traditional approach, it matters not whether the expectation of a
procedural benefit is induced by a promise of
some procedural benefit
itself or by a promise that some substantive benefit will be acquired
or retained. The expectation remains
a procedural one.’
12
[26] The
appellants relied on
Zenzile
for substantive relief. The notice of motion does not seek an
opportunity to make representations or to be heard. The principal

problem for the appellants is that a hearing could not have the
effect the appellants sought, namely, the payments flowing from
the
merit awards ─ because there is no legal basis for such payment.
One can only have a legitimate expectation in relation to
a right
that is legally sustainable and enforceable. It is not insignificant
that the Magistrates Commission on which magistrates
have
representation and a voice debated the issue.
13
[27] The
Magistrates Commission was astute to ensure that magistrates were not
worse off financially and therefore recommended that
the motor
vehicle finance benefit scheme be extended to them.
The
appellants bore the onus to prove that such benefits as they
previously enjoyed had been diminished. This they failed to do.
All
the indications are that motor vehicle finance benefit scheme had, at
the very least, made up for the financial benefits that
used to flow
from the merit awards that were abolished.
[28] In my
view, the reasoning and conclusions of the court below cannot be
faulted.
For the reasons referred
to above, the following order is made:
The appeal
is dismissed with costs, such costs to include the costs occasioned
by the employment of two counsel.
_________________
M S NAVSA
JUDGE OF APPEAL
_________________
L O BOSIELO
ACTING JUDGE OF APPEAL
APPEARANCES:
FOR
APP
ELLANTS: T
J KRUGER SC
L
KELLERMANN
INSTRUCTED
BY:
PIETERSE
& CURLEWIS INC, PRETORIA
KRAMER,
WEIHMANN & JOUBERT INC, BLOEMFONTEIN
FOR
RESPONDENT:
B R TOKOTA SC
D
T SKOSANA
INSTRUCTED
BY:
THE
STATE ATTORNEY, PRETORIA
THE STATE ATTORNEY,
BLOEMFONTEIN
1
The system of merit awards does not apply to Regional Court
Presidents, Regional Court Magistrates and Chief Magistrates.
2
Chapters B.XII/I and K.II/I/7.17(b) governed the rights and
privileges relating to merit awards.
3
See discussion below. More particularly paras 14 and 23.
4
Section 17 of the MA amended
s 9
of the
Magistrates’ Courts
Act 32 of 1944
and thereby made provision for the appointment of
magistrates for districts or sub-districts.
5
See
ss 10
and
4
of the MA read with
s 9
of the
Magistrates’
Courts Act 32 of 1944
.
6
Government Gazette No 20271 ─ Notice No 847.
7
Section 12
came into operation on 11 March 1994. Many of the
appellants were appointed subsequent to 1994.
8
Parts of
s 12
have been amended and substituted on a number of
occasions over the years.
9
Provisions relating to judges have been omitted.
10
Section 1(c) of the Constitution provides:
‘The Republic of South
Africa is one, sovereign, democratic state founded on the following
values:
(a) …
(b) …
(c) Supremacy of the
constitution and the rule of law.
(d) …’
11
At 34J-35B.
12
In this regard
Zenzile
and
Traub
were referred
to (at 732A-D).
13
In terms of s 3 of the MA two magistrates with the rank of chief
magistrate, two regional magistrates and two magistrates who
do not
hold the aforementioned ranks are part of the Magistrates
Commission.