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[2012] ZAGPPHC 186
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Association of Regional Magistrates of Southern Africa v President of the Republic of South Africa and Others (20210/11) [2012] ZAGPPHC 186 (3 September 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
Case
Number: 20210/11
DATE:03/09/2012
In
the matter between:
THE ASSOCIATION OF
REGIONAL MAGISTRATES
................................
Applicant
OF
SOUTHERN AFRICA
and
THE PRESIDENT OF THE
REPUBLIC OF SOUTH
.....................................
First
Respondent
AFRICA
THE
INDEPENDENT COMMISSION FOR THE
REMUNERATION OF PUBLIC
OFFICE BEARERS
...................................
Second
Respondent
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
….........................................................................................
Third
Respondent
THE MINISTER OF
FINANCE
.........................................................................
Fourth
Respondent
JUDGMENT
1.
The applicant is The Association of Regional Magistrates of Southern
Africa, ('ARMSA'), a non-profit professional association
of
permanently appointed Regional Magistrates in the Republic, with
associated membership being extended to judicial officers in
SADEC
countries. It is a juristic person not established for gain, with
address at the office of its secretary
pro term
and is
empowered to conduct litigation in its own name and independently of
its members.
2.
The first respondent is the President of the Republic of South Africa
of c/o the State Attorney, 8tfl Floor, Botongo Heights,
167 Thabo
Sehume Street, Pretoria.
3.
The second respondent is the Independent Commission for the
Remuneration of Public Office-bearers, of c/o The Presidency, Union
Buildings, Pretoria. It is an independent commission established by
the Independent Commission for the Remuneration of Public
Office-bearers Act 92 of 1997, as envisaged by the provisions of
section 219 (2) of the Constitution 108 of 1996, read with
sub-section
(5) thereof. The Commission's function is to "...make
recommendations concerning the salaries, allowances and benefits of
..." members of the National Assembly, permanent delegates to
the National Council of Provinces, members of the Cabinet, Deputy
Ministers, Traditional Leaders and members of any Council of
Traditional Leaders. The Commission is furthermore tasked with making
recommendations in respect of Judges' and Magistrates' salaries,
bearing in mind the relevant provisions of the
Judges' Remuneration
and Conditions of Employment Act 47 of 2001
; as well as the
provisions of the
Magistrates Act 90 of 1993
.
4.
The third respondent is the Minister of Justice and Constitutional
Development, cited in his official capacity, of c/o the State
Attorney, Pretoria, 8th Floor, Bothongo Heights, 167 Thabo Sehume
Street, Pretoria.
5.
The fourth respondent is the Minister of Finance, cited as such in
his official capacity, of c/o the State Attorney, 8th Floor,
Botongo
Heights, 167 Thabo Sehume Street, Pretoria.
6.
The two Houses of Parliament were not joined by the applicant as
parties to the proceedings, although applicant served copies
of the
application papers upon them. The court was, however, of the view
that, given the relief sought by the applicant, both Houses
had a
substantial and direct interest in the outcome of the application and
allowed the matter to stand down in order to allow
the applicant's
legal representatives to obtain a letter from Parliament's legal
advisor, informing the court that neither House
intended to join the
proceedings and that both would abide the court's decision.
7.
Applicant applies for a review in terms of
Rule 53
of the Rules of
Court of a salary determination in respect of the remuneration of
Regional Magistrates and Regional Court Presidents
by the first
respondent. Such a determination must be approved by both Houses of
Parliament. The two Houses' interest in the outcome
of an application
to set aside a determination approved by them is therefore such that
their joinder, or a formal notification
of their intention to abide
the Court's decision, is essential.
8.
The relevant determination was taken by the second respondent about
the 16th November 2010 and was published on the 26th November
2010.
It increased the remuneration of Regional Magistrates and Regional
Court Presidents (and other public office bearers) by
5% backdated to
the 1St April 2010.The applicant challenges this determination on the
grounds that:
a)
The increase resulted in a de facto reduction in the remuneration of
its members and was therefore ultra vires the enabling statute;
b)
The applicant and its members were not afforded a fair opportunity to
make representations to either the second or the first
respondent;
c)
The first respondent did not differentiate between the various
classes of public office bearers, but applied a uniform increase
across the board of all public office bearers whose remuneration had
to be adjusted. In so doing, he adopted the second respondent's
recommendation to determine all public office bearers' remuneration
adjustment by the same percentage. This approach, the applicant
argues, resulted in an unfair and unlawful determination of the
applicant's members' remuneration because the particular
circumstances
of this class of public office bearers were overlooked.
This is the case, the applicant submits, because the second
respondent's
recommendation failed to observe the need to consider
the Regional Magistrates and Regional Courts Presidents' role,
status, duties
and functions as decreed by
section 8
(6) of the
Independent Commission for the Remuneration of Public Office-bearers
Act 92 of 1997;
d)
By so doing, the first respondent unreasonably and irrationally
failed to provide sufficient, or any, reasons for his determination.
9.
The first respondent joins issue with these allegations, denying that
his actions were tainted by any irregularity or unlawfulness.
In
particular, the first respondent disputes that his decision is
reviewable. Underlining the fact that he acts upon the recommendation
of the second respondent and consults with relevant ministers before
determining a remuneration adjustment, which determination
must be
approved by both Houses of Parliament before it is published, first
respondent argues that his decision does not amount
to administrative
action but constitutes executive action. His determination can
therefore not be subjected to a review.
10.
The first respondent's stance is supported by the second respondent.
The Commission furthermore disputes that the uniform salary
adjustment that it recommended amounted to an undifferentiated,
unfair and unlawful recommendation.
11.
Before dealing with the facts that are relevant to the dispute
between the parties, it is necessary to pay attention to the
constitutional principles that underlie the courts' judicial
authority; and to legislative provisions that regulate the
determination
of the remuneration of the judiciary in general and the
magistracy in particular.
12.
Section 1 of the Constitution recognises the supremacy of the
Constitution and the rule of law as a foundational value of the
Republic.
13.
Section 165 thereof establishes judicial authority:
'165.
Judicial authority.-(i) The judicial authority of the Republic is
vested in the courts.
(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)
An order or decision issued by a court binds all persons to whom and
organs of state to which it applies.'
14.
Section 166 of the Constitution defines the judicial system and
expressly includes the Magistrates' Courts in the list of judicial
institutions that are vested with the authority
conferred by, and
entitled to the protection determined in terms of section 165.
15.
The manner in which judicial officers are appointed is laid down in
section 174 of the Constitution, which deals in sub-section
(7) with
the appointment of officers other
than judges, and reads:
'(7)
Other judicial officers must be appointed in terms of an Act of
Parliament which must ensure that the appointment, promotion,
transfer or dismissal of, or disciplinary
steps
against, these judicial officers take place without favour or
prejudice.
(8)
Before judicial officers begin to perform their functions, they must
take an oath or affirm, in accordance with Schedule 2,
that they will
uphold and protect the Constitution'.
16.Section
219 of the Constitution decrees that the remuneration of public
office bearers must be regulated by an Act of Parliament,
which must
in turn establish a framework for determining their salaries,
allowances and benefits. National legislation must create
an
independent commission to investigate and make recommendations
concerning these salaries, allowances and benefits. The second
respondent is the Commission created in terms of this section by the
Independent Commission for the Remuneration of Public Office-bearers
Act 92 of 1997.
17.The
magistracy is included in this scheme of determining the salaries,
allowances and benefits of its members through the provisions
of
section 12 of the Magistrates' Act, quoted here in full:
72
Remuneration of Magistrates
(1)(a)
Magistrates are entitled to such salaries, allowances and benefits -
(i)
as determined by the State 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).
(b)
Different categories of salaries and salary scales may be determined
by the President in respect of different categories of
magistrates.
(c)
The Commission referred to in paragraph (a) (i) must, when
investigating or considering the remuneration of magistrates, consult
with -
(i)
the Minister and the Cabinet member responsible for finance; and
(ii)
the Chief Justice or a person designated by the Chief Justice.
(2)
A notice in terms of subsection (i) (a) or any provision thereof may
commence from any date specified in such notice, which
date may not
be more than one year before the date of publication of the notice.
(3)
(a) A notice issued under subsection (1) (a) must be submitted to
Parliament for approval before publication thereof.
(b)
Parliament must by resolution -
(I)
approve the notice, whether in whole or in pad; or
(ii)
disapprove the notice.
(4)
The amount of any remuneration payable in terms of subsection (1),
shall be paid out of the National Revenue Fund as contemplated
in
section 213 of the Constitution.
(5)
(a) If any magistrate is appointed in an acting or temporary capacity
to any other judicial office -
(i)
for a continuous period exceeding one day; and
(ii)
the remuneration attached to that office exceeds the remuneration
attached to the office ordinarily held by the magistrate,
he or she
shall, for the duration of such appointment, be entitled to such
additional remuneration as determined from time to time
by the
Minister.
(b)
For the purpose of paragraph (a) additional remuneration must be
calculated by the day, and any part of a day must be reckoned
as a
day.
(6)
The remuneration of a magistrate shall not be reduced except by an
Act of Parliament.
(7)
If an officer or employee in the public sen/ice is appointed as a
magistrate, the period of his or her service as a magistrate
shall be
reckoned as a part of and continuous with his or her service in the
public service for the purposes of leave, pension
and any other
condition of service.'
18.
It is trite that the independence of the judiciary is ensured, inter
alia, by a safeguard against unreasonable material and
financial
challenges. In S and Others v Van Rooyen and Others (General Council
of the Bar of South Africa Intervening)
2002 (5) SA 246
(CC);
2002
(8) BCLR 210
(CC), Chaskalson CJ said, in discussing the need to
ensure that judicial officers are adequately remunerated, and the
manner in
which such remuneration ought to be determined in practice,
'[138]
The determination of salaries of judicial officers raises difficult
questions to which there are no easy solutions. Adequate
remuneration
is an aspect of judicial independence If judicial officers lack that
security, their ability to act independently
is put under strain
Moreover if salaries are inadequate it would be difficult to attract
to the judiciary persons with the skills
and integrity necessary for
the discharge of the important functions exercised by the judiciary
in a democracy. Thus, the requirement
mentioned by Ackermann J in De
Lange v Smuts that judicial officers must have "a basic degree
of financial security".
But who is to determine what that is? If
it is the legislature or the executive this may give rise to the
tensions between the
judiciary and the other arms of government, and
the judiciary itself could then be thrust into the position of having
to deal with
litigation in which the issue is whether the salaries
are consistent with the constitutional requirement of judicial
independence.
That is obviously undesirable. Although judges could
exercise that function in relation to the remuneration of
magistrates, it
would be invidious to have to be judges in their own
cause if their own salaries were in issue.
[139]
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.
[140]
Parliament and the executive, the other two arms of government, are
in a different position. They have control over the public
purse and
are entitled through legislation and executive action to determine
their own remuneration and conditions of service.
A mechanism has.
however, been put in place to avoid the conflict inherent in such a
situation. Sections 219(1} and (2) of the
Constitution require an
independent commission to be established to make recommendations
concerning such remuneration. The Independent
Commission for the
Remuneration of Public Office Bearers performs that function.
(Footnotes
omitted)
19.The
second respondent, ('the Commission') is thus interposed between
public office bearers and the bearers of the public purse.
It is
obliged to make recommendations concerning salaries, allowances and
benefits to the executive and to Parliament that should,
in the case
of judicial officers and judges, ensure that their remuneration is
determined at a level that will protect the latter's
independence by
ensuring an adequate level of financial security.
20.In
so doing, the Commission must consider the following factors
enumerated in section 8 (6) of the Commission for the Remuneration
of
Public Office Bearers Act 92 of 1997:
'(i)
the role, status, duties, functions and responsibilities of the
office bearers concerned:
(ii)
the affordability of different levels of remuneration of public
office bearers:
(iii)
current principles and levels of remuneration, particularly in
respect of organs of state, and society generally;
(iv)
inflationary increases;
(v)
the available resources of the state; and
(vi)
any other factor which, in the opinion of the said Commission, is
relevant.'
21.The
importance of the second respondent's recommendations regarding the
salaries
and emoluments of judges and magistrates is emphasized by the fact
that judicial officers cannot, and should not, find
themselves in the
role of employees and can neither negotiate directly with the
executive nor resort to industrial action in the
event of
dissatisfaction with the return upon their labours.
22.The
background to the first respondent's decision which it is sought to
set aside has its origin in the second respondent's recommendation
regarding the 2010 adjustment in the salaries of judges and
magistrates (and other public office bearers) for the financial year
2010/2011. On the 6th April 2010 it addressed a letter to the then
Chief Justice, attaching a copy of the proposed recommendations
regarding the envisaged adjustment of the salaries, benefits and
allowances of public office bearers. An early audience was sought
with the Hon Chief Justice to discuss the proposals. Based upon the
Commission's view that inflation would stabilise at 5.3% for
the year
and bearing in mind that the Public Service had received a salary
increase of 10.5 % in 2008 and between 10% and 13% in
2009, while
public office bearers had received only 7%; the second respondent was
of the view that a genera! increase of 7% for
all public office
bearers would be appropriate to avoid them falling behind the Public
Service.
23.
The second respondent motivated its recommendation as follows:
...
The CPI for January 2010 was 6.2% and for February 2010 it was 5.7%
The average so far for the year is 6.0%. if the traditional
approach
of CPI plus 1% is followed, then it does make sense to recommend an
average percentage of cost-of living-adjustment with
effect from !
April 2010 for Public Office Bearers.
4.5
If a reduced percentage point is adopted, it would imply that Public
Office Bearers will fall behind the market for two consecutive
years.
If this approach is followed next year it will compel the Commission
to recommend a third major review of Public Office
Bearer
remuneration levels. It should certainly not be the intention of the
Commission to play catch-up every three to four years.'
(The
reference to a major review of public office bearers' remuneration
levels is to the Commission's reports of 2007 and 2008,
which advised
that substantial increases in the remuneration of public office
bearers were required in those two years to bring
public office
bearers on par with average market remuneration levels nationally and
internationally.)
24.
The Chief Justice sent the recommendation with the explanatory
memorandum to the Magistrates' Commission on the 5th May 2010.
with a
request to comment thereupon by the 12in May 2010. The second
respondent in turn forwarded the request to the applicant
on the 7th
May 2010. Although the applicant complains that it was given only
five days to prepare its
comments, it is clear that a
comprehensive presentation was prepared in time for the Chief
Justice's consideration. The applicant
has not suggested in its
papers that it would have wished to, or could have added any further
arguments to those contained in its
memorandum.
25.
In the submission that was eventually sent to the Chief Justice on
the 12th May 2010, the applicant's representatives made the
following
salient points to illustrate the significant differences between the
position of the High Court Judiciary and the Regional
Magistrates in
order to motivate the call for a significant adjustment on the
latter's remuneration package:
a)
The retirement gratuity of the head of the High Court Judiciary
exceeded that of a Regional Court Magistrate by more than 300%;
b)
The annuity on retirement between the two posts differed by nearly
600%;
c)
The gap between the lowest paid judge and the highest paid regional
magistrate was widening to 20%,
d)
The Regional Magistrates had the lowest retirement benefits of all
public office bearers;
e)
Increases to these benefits had, over the past three years, been the
lowest for magistrates when compared to judges and members
of the
National Assembly:
f)
Magistrates received a far lower contribution to their medical fund
than those made to Parmed to which other public office bearers
belong;
g)
Regional Magistrates had fallen behind members of the Public Service
over the previous years because the Public Service received
higher
annual salary increases:
h)
Although the applicant doubted the correctness and legality of a
recommendation that advocated the same general increase across
the
board for all public office bearers, it suggested an increase of 9.5%
if a 'one-size-fits-air recommendation were to be persisted
with.
26.The
second respondent's proposals were presented to the first respondent
on the 8th September 2010. The first respondent met
with the Minister
of Finance to discuss the recommendation and was informed by him that
the inflationary outlook for the year had
further decreased to 4.2 %
of the Consumer Price Index. The proposed increase of 7% for all
public office bearers was not affordable
in the light of the above
facts and a genera! increase of 5% of the remuneration of all public
office bearers appeared to be appropriate.
27.On
the 12th November 2010 the second respondent officially published its
recommendation of a 7% across the board salary increase
for public
office bearers in the Government Gazette in compliance with section
8(4) of Act 92 of 1997. At a press conference on
the same date the
first respondent announced his intention to determine the salary
increase at 5 % across the board.
28.The
first respondent's draft notice was sent on the 16th November 2010 to
the Speaker of the National Assembly and the Chairperson
of the
National Council of Provinces for approval by both houses. The notice
was approved by resolution of the National Assembly
on the 18Ih
November 2010 and by resolution by the National Council of Provinces
on the 24th November 2010.
29.The
first respondent thereafter officially published the determination of
the annual salary adjustment on the 26th November 2010.
The present
review application was launched on the 13
th
May 2011.
30-Although
the affidavits filed by the applicant's president do not refer
thereto in any detail, much was made in the applicant's
heads of
argument of the very considerable work load the regional Magistrates
have to bear and of the additional burdens placed
upon them by the
comparatively recent expansions of their jurisdiction to impose life
imprisonment in respect of offences referred
to in Part 1 of Schedule
2 of Act 105 of 1997 as amended, together with the civil jurisdiction
newly conferred upon the Regional
Courts. Although these
considerations were not presented under oath they were not
contentious. It is common cause that the Regional
Courts form the
backbone of the criminal justice system in the Republic. The court
can take judicial notice of the fact that they
are continuously faced
with overcrowded rolls and experience many administrative and other
challenges.
31.
The first issue that needs to be determined in respect of the review
proceedings is the question whether the first respondent's
determination of the remuneration adjustment amounts to
administrative action or constitutes executive action incapable of
being
reviewed in terms of the
Promotion of Administrative Justice
Act 3 of 2000
{'PAJA') Administrative action' is defined in
section 1
thereof as follows:
'1.
In this Act, unless the context indicates otherwise—
(i)
"administrative action" means any decision taken, or any
failure to take a
decision,
by—
(a)
an organ of state, when—
(i)
exercising a power in terms of the Constitution or a provincial
constitution; or
(ii)
exercising a public power or performing a public function in terms of
any legislation; or
(b)
a natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in
terms of
an empowering provision, which adversely affects the rights of any
person and which has a direct, external legal effect,
but does not
include—
(as)
the executive powers or functions of the National Executive,
including the powers or functions referred to in sections 79(
1) and
(4), 84(2)(a), (b), (c), (d), m, (g), (h), (i) and (k), 85(2)(b),
(c), (d) and (e). 91(2), (3), (4) and (5), 92(3), 93,
97, 98, 99 and
100 of the Constitution;
(bb)
the executive powers or functions of the Provincial Executive,
including the powers or functions referred to in sections 121(1)
and
(2), 125(2)(d), (e)andm, 126. 127(2), 132(2), 133(3)(b), 137.138. 139
and 145(1) of the Constitution;
(cc)
the executive powers or functions of a municipal council;
(dd)
the legislative functions of Parliament, a provincial legislature or
a municipal council;
(ee)
the judicial functions of a judicial officer of a court referred to
in section 166 of the Constitution or of a Special Tribunal
established under section 2 of the Special Investigating Units and
Special Tribunals Act, 1996 (Act No. 74 of 1996). and the judicial
functions of a traditional leader under customary law or any other
law;
(ff)
a decision to institute or continue a prosecution;
(gg)
a decision relating to any aspect regarding the appointment of a
judicial officer, by the Judicial Service Commission;
(hh)
any decision taken, or failure to take a decision, in terms of any
provision of the
Promotion of Access to Information Act, 2000
; or
(ii)
any decision taken, or failure to take a decision, in terms of
section
32.
In arguing that the determination by the first respondent did
constitute administrative action for the purposes of PAJA, the
applicants relied upon the judgment by Chaskatson CJ in Minister of
Health and Another NO v New Clicks South Africa (Pty) Ltd)
and Others
2006 (2) SA 311
(CC). in which the following was said:
'[121]The
Minister and the Pricing Committee are both organs of state The
regulation of prices in the disputed regulations adversely
affect the
rights of pharmacists and other persons in the pharmaceutical
industry The regulations will therefore be 'administrative
action'
within the meaning of PAJA. if the making of the legulations
constituted a "decision", and if they are not excluded
by
subparagraph (aa) to (ii) of the definition of administrative action
The
exclusions
[122]
The exclusions from the definition of "administrative action"
are "(aa) the executive powers or functions of
the National
Executive, including the powers or functions referred to in sections
79(1) and (4), 84(2)(a). (b), (c). (d). (f).
(g),(h), (i) and (k).
85(2)(b), (c), (d) and (e), 91(2). (3). (4) and (5), 92(3), 93, 97,
98. 99 and 100 of the Constitution;
(bb)
the executive powers or functions of the Provincial Executive,
including the powers or functions referred to in sections 121(1)
and
(2). 125(2)(d), (e) and (f). 126. 127(2). 132(2), 133(3)(b), 137,
138. 139 and 145(1) of the Constitution;
(cc)
the executive powers or functions of a municipal council;
(dd)
the legislative functions of Parliament, a provincial legislature or
a municipal council;
(ee)
the judicial functions of a judicial officer of a court referred to
in section 166 of the Constitution or of a Special Tribunal
established under section 2 of the Special Investigating Units and
Special Tribunals Act, 1996 (Act No 74 of 1996), and the judicial
functions of a traditional leader under customary law or any other
law;
(ff)
a decision to institute or continue a prosecution;
(gg)
a decision relating to any aspect regarding the appointment of a
judicial officer, by the Judicial Service Commission;
(hh)
any decision taken, or failure to take a decision, in terms of any
provision of the
Promotion of Access to Information Act, 2000
; or
(ii)
any decision taken, or failure to take a decision, in terms of
section 4(1)
".
[123]
Subparagraph (aa) deals with the executive powers and functions of
the National Executive. It refers to sections 79. 84, 85.
91. 92. 93.
97. 98. 99 and 100 of the Constitution. Sections 79 and 84 of the
Constitution deal with powers vested in the President
alone. They are
not relevant to the present case. Nor are sections 92, 93. 97. 98.
and 99. Section 85 is however, relevant and
of importance.
[124]
Section 85 deals with the President and Cabinet If it had stood alone
there would have been greater force in the finding that
the making of
regulations by a minister is excluded from the definition of
"administrative action". But it does not stand
alone.
Subparagraph (aa) of the definition goes on to refer to specific
subparagraphs of section 85(2). including sections 85(2)(b),
(c).
(d). and (e), but excludes from the list section 85(2)(a). The
provisions of section 85(2)(a) to (e) are as follows:
"(2)
The President exercises the executive authority, together with the
other members of the Cabinet, by—
(a)
implementing national legislation except where the Constitution or an
Act of Parliament provides otherwise;
(b)
developing and implementing national policy
(c)
co-ordinating the functions of state departments and administrations;
(d)
preparing and initiating legislation; and
(e)
pedorming any other executive function provided for in the
Constitution or in national legislation.''
[125]
The omission of subparagraph (2)(a) from the specified list of
exclusions is significant. Subparagraph (bb) of the definition
of
administrative action deals with the powers of the provincial
executive. Various provisions of section 125 of the Constitution
are
listed, but again significantly, sections 125(2)(a), (b) and (c),
which refer to the implementation of legislation are omitted
from the
list.
[126]
In President of the Republic of South Africa and Others v South
African Rugby Football Union and Others (SARFU) this Court
said that
''one of the constitutional responsibilities of the President and
Cabinet Members in the national sphere {and premiers
and members of
executive councils in the provincial sphere) is to ensure the
implementation of legislation. This responsibility
is an
administrative one. which is justiciable and will ordinarily
constitute 'administrative action' within the meaning of s 33
''
If
sections 85(2){a) and 125(2)(a), (b) and (c) had not been omitted
from the list of exclusions, the cow of administrative action
would
have been excluded from PAJA, and the Act mandated by the
Constitution to give effect to sections 33(1) and (2) would not
have
served its intended purpose The omission of sections 85(2)(a) and
125(2)(a). (b) and (c) from the list of exclusions was clearly
deliberate. To have excluded the implementation of legislation from
PAJA would have been inconsistent with the Constitution. The
implementation of legislation, which includes the making of
regulations in terms of an empowering provision, is therefore not
excluded from the definition of administrative action.
Does
the making of regulations constitute a "decision”
[127]
PAJA defines "decision'' as follows.
'''decision'
means any decision of an administrative nature made, proposed to be
made, or required to be made, as the case may be,
under an empowering
provision including a decision relating to-
a)
making, suspending, revoking or refusing to make an order award or
determination.
(b)
giving, suspending, revoking or refusing to give a certificate,
direction, approval, consent or permission-
(c)
issuing, suspending, revoking or refusing to issue a licence,
authority or other instrument.
(d)
imposing a condition of restriction.
(e)
making a declaration demand or requirement:
(f)
retaining or refusing to deliver up, an article, or
(g)
doing or refusing to do any other act or thing of an administrative
nature, and a reference to a failure to take a decision
must be
construed accordingly''.
[128]
It is true that the making of regulations is not referred to in
subparagraphs (a) to (f). But the reference in the main part
of the
definition to 'any decision of an administrative nature' and in the
general provision of subparagraph (g) to "doing
or refusing to
do any other act or thing of an administrative nature ' bangs the
making of regulations within the scope of the
definition. This seems
to me to be the dear meaning of the definition. But if there is any
doubt on this score, the definition
of administrative action must be
construed consistently with section 33 of the Constitution. Ail the
judges in the High Court considered
that the making of regulations
falls within the scope of "administrative action' in section 33
of the Constitution. I have
already indicated why I agree with this
conclusion.
[129]
The majority in the High Court considered that the failure to refer
specifically to legislative administrative action in the
definition
of "decision" in section 1 of PAJA was deliberate, and
indicated an intention to exclude such action from
being reviewed
under PAJA. I have already dealt with why I take a different view. It
is necessary, however, to deal briefly with
reasons given by the
majority of the High Court for their decision on this issue.
[130]
They attached weight to the specific exclusion from the definition of
administrative action in PAJA. of "any decision
taken, or
failure to take a decision, in terms of section 4(1). Section 4 of
PAJA provides:
"Administrative
action affecting public.—(1) In cases where an administrative
action materially and adversely affects
the rights of the public, an
administrator in order to give effect to the right to procedurally
fair administrative action, must
decide whether—
(a)
to hold a public inquiry in terms of subsection (2)-
(b)
to follow a notice and comment procedure in terms of subsection (3);
(c)
to follow the procedures in both subsections (2) and (3);
(d)
where the administrator is empowered by any empowering provision to
follow a procedure which is fair but different, to follow
that
procedure, or
(e)
to follow another appropriate procedure which gives effect to section
3.
(2)
If an administrator decides to hold a public inquiry—
(a)
the administrator must conduct the public inquiry or appoint a
suitably qualified person or panel of persons to do so; and
(b)
the administrator or the person or panel referred to in paragraph (a)
must—
(i)
determine the procedure for the public inquiry, which must—
(aa)
include a public hearing and
(bb)
comply with the procedures to be followed in connection with public
inquiries, as prescribed,
(ii)
conduct the inquiry in accordance with that procedure;
(iii)
compile a written report on the inquiry and give reasons for any
administrative action taken or recommended; and
(iv)
as soon as possible thereafter—
(aa)
publish in English and in at least one of the other official
languages in the Gazette or relevant provincial Gazette a notice
containing a concise summary of any report and the particulars of
the places and times at which the report may be inspected and
copied;
and
(bb)
convey by such other means of communication which the administrator
considers effective, the information referred to in item
(aa) to the
public concerned
(3)
If an administrator decides to follow a notice and comment procedure,
the administrator must—
(a)
take appropriate steps to communicate the administrative action to
those likely to be materially and adversely affected by it
and call
for comments from them;
(b)
consider any comments received;
(c)
decide whether or not to take the administrative action, with or
without changes; and
(d)
comply with the procedures to be followed in connection with notice
and comment procedures, as prescribed.
(4)(a)
If it is reasonable and justifiable in the circumstances, an
administrator may depart from the requirements referred to in
subsections (1)(a) to (e), (2) and (3). (b) in determining whether a
departure as contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into account all relevant
factors, including—
(i)
the objects of the empowering provision;
(ii)
the nature and purpose of. and the need to take, the administrative
action;
(iii) the likely effect of the administrative action;
(iv)
the urgency of taking the administrative action or the urgency of the
matter; and
(v)
the need to promote an efficient administration and good governance."
I
refer more fully to its provisions later when I deal with arguments
directed to the issue of procedural fairness.
[131]
Section 4(1) imposes an obligation on an administrator concerned with
decisions that affect the public to comply with the
requirement of
procedural fairness, but authorises him or her to decide how to give
effect to this requirement. As long as the
procedure followed meets
the requirements of one of subparagraphs (a) to (d). the provisions
of section 4(1) will have been complied
with
[132]
What is or is not administrative action for the purposes of PAJA is
determined by the definition in section 1. It is only
if the action
taken falls within the definition that section 4 comes into play. The
fact that the choice of a particular procedure
to be followed in
terms of section 4(1) is not itself subject to review, does not
provide any help in deciding what is or is not
"administrative
action" All that it means is that an administrator's choice of
procedure is final. Consistently with
this the implementation of the
choice in a manner consistent with sections 4(2). (3) or (4) remains
subject to review.'
33.
A moment's reflection upon the process that has been decreed by
section 219 of the Constitution read with section 12 of the
Magistrates' Act to determine the salaries of public office bearers
must lead to the conclusion that the first respondent's determination
does not constitute administrative action if compared to the
implementation of national legislation described in the passage
quoted
In the previous paragraph.
34.
Public office bearers, and in particular judges and magistrates
cannot enter into a bargaining process with the executive in
respect
of their salaries without compromising their independence. It is for
this reason that the second respondent has been created,
a commission
that consults with all interested parties, considers all relevant
information and independently assesses the factors
and considerations
that should be taken into account in determining the public office
bearers' remuneration. The first respondent
cannot exercise any
discretion in respect of such remuneration unless and until he has
received a recommendation from the second
respondent. He has no duty
to request the second respondent's recommendation - the latter is
compelled by the statute under which
it has been created to prepare
an annual submission and present the same to him.
35.
The first respondent is not called upon to consider any of the
actions envisaged in section 4 of PAJA. The only parties he may
consult are the Minister of Finance or other members of the Cabinet,
but he may certainly not initiate other consultative processes.
The
whole rationale for creating the second respondent and establishing
the procedures by which the remuneration of public office
bearers
generally, and Judges and Magistrates in particular are determined,
is aimed at eliminating the necessity of following
a procedure as
envisaged in section 4 of PAJA. Consultations with interested parties
affected by the first respondent's decision
are, for reasons of
public policy and the need to protect the independence of judges and
judicial officers, limited to the indirect
discussions conducted by
the second respondent with representatives of the various categories
of public office bearers.
36.The
first respondent's determination is without force and effect until it
has been approved by Parliament. Parliament's two Houses
must approve
the recommendation by resolution and have the power - and the duty -
to approve a recommendation in part, to approve
it in its entirety or
to reject the recommendation as a whole.
37.The
applicant described the approval by Parliament as a 'ratification' of
the first respondent's determination. This submission
is correct if
it is intended to convey thereby that the first respondent's
determination depends upon its validity and enforceability
upon the
decision by both Houses of Parliament: Munimed v Premier van Gauteng
en andere
[1999] 4 All SA 362
(T) and the authorities there quoted.
Non constat that the first respondent's determination is therefore to
be regarded as an administrative
act that could be subjected to a
PAJA review. Seen in its proper context, the process of preparing a
notice in terms of section
12 of the Magistrates' Act falls into the
category of an executive function intended in section 85 (2) (e) of
the Constitution.
38.
The question remains whether the first respondent's determination is
reviewable on the principle of legality. Actions that are
purely
executive or legislative may still be challenged if they conflict
with the principle of the rule of law either substantively
or
procedurally: Democratic Alliance and Others v Acting National
Director of Public Prosecutions and Others
[2012] 2 All SA 345
(SCA)
at paras [27] to [32] and the authorities there cited. In Albutt and
Others v Centre for the Study of Violence and Reconciliation
and
Others
2010 (3) SA 293
(CC) the following was said in paras [48] to
[51]:
'[49]
It is by now axiomatic that the exercise of all public power must
comply with the Constitution, which is the supreme law,
and the
doctrine of legality, which is part of the rule of law. More
recently, and in the context of section 84 (2) (J) (of the
Constitution), we held that although there is no right to be
pardoned, an applicant seeking pardon has a right to have his
application
'considered and decided upon rationally, and in good
faith, [and] in accordance with the principle of legality." It
follows
therefore that the exercise of the power to grant pardon must
be rationally related to the purpose sought to be achieved by the
exercise of it.
[50]
All this flows from the supremacy of the Constitution. The President
derives the power to grant pardon from the Constitution
and that
instrument proclaims its own supremacy and defines the limits of the
powers it grants. To pass constitutional muster therefore,
the
President's decision to undertake the special dispensation process,
without affording victims the opportunity to be heard,
must be
rationally related to the achievement of the objects of the process.
If it is not, it falls short of the standard that
is demanded by the
Constitution.
[51].
The executive has a wide discretion in selecting the means of
achieving its constitutionally permissible objectives. Courts
may not
interfere with the means selected simply because they do not like
them, or because there are other more appropriate means
that could
have been selected. But. where the decision is challenged on the
grounds of rationality, courts are obliged to examine
the means
selected to determine whether they are rationally related to the
objective sought to be achieved. What must be stressed
is that the
purpose of the enquiry is to determine not whether there are other
means that could have been used, but whether the
means selected are
rationally related to the objective sought to be achieved. And if
objectively speaking they are not, they fail
short of the standard
demanded by the Constitution. This is the true exercise of the power
…"
39.
The applicant suggests that there are several grounds upon which the
first respondents decision could be reviewed and set aside.
The first
is the argument that the increase of 5% amounted in effect to a
reduction of the Regional Magistrates' salary in that
it failed to
keep up with inflation. While the determination must be made while
keeping inflationary pressures upon the currency
in mind, the
prohibition against a reduction in salary is obviously aimed at a
conscious, deliberate reduction in remuneration
in real terms. Quite
apart from a conflict of fact on the papers in this regard, a
reduction in purchasing power as a result of
inflation is not such a
reduction in remuneration. Inflation is a fact of economic activity
and monetary policies, of the working
of market forces, subject to
national and international economic and trade developments, which
must be taken cognisance of during
the annual reconsideration of the
public office bearers' remuneration. The first respondent s
determination did take due notice
of the effect of inflation upon the
salaries of the affected parties and cannot be attacked on this
ground.
40.
The next submission is based upon the first respondent's alleged
failure to afford the applicant or its members an opportunity
to make
representations to him regarding the decision not to accept the
applicant's proposed salary increase. This failure, it
is submitted,
resulted in materially adverse consequences for the applicant's
members as they were denied due participation in
the deliberative
process. As has been set out above, the procedure decreed by section
12 of the Magistrates' Act read with the
relevant provisions of the
Independent Commission for the Remuneration of Public Office Bearers
Act 92 of 1997, is specifically
designed to ensure that the judiciary
of the High Court and judicial officers in the Regional Courts do not
have to engage in direct
salary negotiations with the executive,
which might affect their independence. The perceived failure to
consult the applicant or
its members prior to the first respondent
finalising his determination cannot therefore be regarded as
inappropriate or unfair
and this argument must be dismissed.
41.
Lastly, the applicant complains that the first respondent adopted the
second respondent's recommendation of a uniform increase
in
remuneration for ail public office bearers. By so doing, the argument
goes, second respondent failed to comply with the statutory
obligation imposed upon it by section 8 (6) (i) of the Public Office
Bearers Act 92 of 1997 to take into account the role, status,
duties,
functions and responsibilities of the office-bearers concerned when
making a recommendation in regard to an increase in
their
remuneration. The applicant argues that a blanket approach was
evident in the recommendation of a uniform increase of 5%
for all
categories without any differentiation between the various categories
of public office bearers and without any proper motivation
for this
approach.
42.
The second respondent considers the adjustment of judges and
magistrates in the absence of its Chairperson, who is a member
of the
Judiciary and therefore recuses himself when this aspect of the
Commission's recommendations is considered. The second respondent
has
explained the process it followed in the answering affidavit filed by
its Deputy Chairperson as follows;
'7.12
...... The Commission considers, as it is required to do, the role,
status,
functions
and responsibilities of the office bearers concerned. The various
categories of office bearers are pegged differently.
Members of
Parliament. Cabinet Members, and Traditional authorities share a
common character of being public office bearers and
a uniform
adjustment impacts on these categories differently. It is therefore
inappropriate to describe it as a "one size
fits all"....
25.1
Magistrates have been remunerated in terms of the same salary,
allowances and benefits structure as public sen/ants until 2003,
when
they were included under the definition of "office bearers".
Despite their addition to the fold of public office
bearers, their
remuneration packages are however still composed similarly to those
of ordinary public servants.
25.2
Based upon the available grading and market data per grade, it
appeared as the majority of Magistrates at lower levels are
being
fairly paid relative to the National Market, but that the gap between
the remuneration of the lowest level judge and the
highest level
magistrate is too wide: and the level of compression between the
remuneration of a Judge of the high Court (sic)
and the Chief Justice
is unduly small, and not in relation to job evaluation indicators, or
international best practice.
25.3
The Commission considered levels of remuneration of public
prosecutors and other legal practitioners in the public service,
and
the possible comparison thereof to the remuneration of Magistrates,
based on historical remuneration practices. The Commission
however
considers it inappropriate to deviate from its principled and
scientifically formulated remuneration practices in respect
of
Magistrates.
25.4
After due consideration, the Commission's view was that there should
be no change to the current benefit structure of Magistrates
for the
time being....
44.2
I maintain that the remuneration of public office bearers are (sic)
already staggered in relation to the role, duties, functions
and
responsibilities of each particular class.
44.3
A uniform percentage increase impacts on these classes of public
office bearers differently and yet there is a rational explanation
for a uniform adjustment where inflation and other considerations
apply with equal force to each class of public office bearers.'
43.
With respect to the second respondent it is difficult to extract from
these comments on what basis the Regional Magistrates'
and Regional
Court Presidents' role, status, functions and responsibilities were
evaluated when it appears to be common cause on
the one hand that
they are insufficiently recompensed when considering their position
in the judicial hierarchy, but it is maintained
at the same time that
scientifically justifiable considerations warrant not only the
continuation of an insufficient remuneration
package; but also a
uniform increase for all public office bearers that must, in real
terms, exacerbate the existing unfairness
of the Regional
Magistrates' and Regional Court Presidents' remuneration. The
complaint that the second respondent failed to take
proper account of
the position of the applicant's members when preparing the 2010
recommendation on the basis of 'one-size-fits-all"
appears to be
well justified. Its explanation of the process it followed lacks
rationality.
44.
From the record filed by the first respondent in reaction the notice
in terms of Rule 53 it is clear that, in adopting the second
respondent's approach of a uniform increase for all classes of office
bearers, but at a reduced level, no consideration was given
to the
different circumstances of the different categories of public office
bearers affected by the determination. Their respective
roles,
status, duties, functions and responsibilities were neither mentioned
nor considered or compared with one another. There
is no evidence of
any appreciation that the circumstances of the Regional Magistrates -
who presented a detailed and well-motivated
memorandum setting out
their concerns that a failure to consider their particular
circumstances might see them fall further behind
other public office
bearers if no particular provision was made for them - might require
a salary adjustment that differed from
that of other categories of
office bearers affected by the determination. Even if a blanket
adjustment of all public office bearers'
salaries were to be decided
upon eventually, the first respondent to consider the circumstances
of the individual categories of
public office bearers and their
particular claims to salary adjustments before coming to a final
conclusion. In respect of the
applicant's members he was furthermore
obliged to consider whether the different categories of magistrates
should be remunerated
according to different salary scales. No such
investigation was undertaken.
45.
The first respondent defends his failure to provide any reasons for
his determination on the basis that he paid heed to the
second
respondent's recommendations and the advice by the Minister of
Finance. This explanation confirms that he failed to take
the
particular circumstances of the various categories of public office
bearers into account.
46.
It follows that the first respondent's determination of the 2010
salary adjustments relating to the Regional Magistrates and
Regional
Court Presidents fails the test of legality because of the failure to
comply with the statutory requirement to consider
the public office
bearers' particular role, status, function, duties and
responsibilities prior to determining an appropriate salary
increase,
rendering the determination unlawful and irrational. It must
therefore be set aside and remitted to him for reconsideration.
47.
From the above reasoning it is clear that even if the conclusion that
the first respondent's determination constitutes executive
action is
wrong, and applicant's submission that it is in fact an
administrative act is correct, the first respondent's decision
would
-
a fortior
i - be subject to review and liable to be set aside
on the grounds of a failure to take relevant factors into account and
on the
resultant irrationality of the determination.
48.It
might be argued that it is inappropriate to set aside only the
decision relating to the applicant's members, and not the first
respondent's determination in its entirety. Bearing in mind that the
first respondent is obliged to pay attention to the individual
circumstances of each group of public office bearers, his
determination, although singular in its composition, is in fact a
conglomerate
of individual determinations for each class of public
office bearers affected thereby. It is consequently possible to set
aside
only one of these determinations relating to one category of
public office bearers Quite apart from this consideration the
applicant
has correctly pointed out that it has only
locus standi
to deal with the recommendation affecting its members.
49.For
reasons set out in this judgment, the applicant's demand that the
first respondent consult with its members prior to reconsidering
the
recommendation cannot De entertained.
50.
While the matter is remitted to the first respondent for
reconsideration, the determination will remain of full force and
effect
to avoid the consequence that the applicant's members receive
the - lower - salary that was payable according to the scales that
applied prior to the impugned decision coming into effect
The
following order is made:
1.
The first respondent's decision taken on or about the 16th November
2010 and published on 26th November 2010, wherein he increased
the
remuneration of Regional Magistrates and Regional Court Presidents by
5% with effect from 1 April 2010 is reviewed and set
aside;
2.
The matter is remitted to the first respondent for reconsideration in
the light of this judgment;
3.
The decision referred to in paragraphs shall continue to be of full
force and effect until the first respondent has taken the
decision
afresh;
4.
First respondent is ordered to pay the applicant's costs.
Signed
at Pretoria on this 3 day of September 2012.
E
BERTELSMANN
Judge
of the High Court
Case
no: 20210/11
Date
of the hearing: 15 June 2012
Judgment
delivered on:03 September 2012
Counsel
for the Applicant: Adv M Chaskalson SC with Adv S Budlender
Instructed
by:Rudmanl Attorneys, Pretoria
Counsel
for the lil & 20d Respondents :Adv I A M Semenya SC with Adv A
Rawjee
Instructed
by:State Attorney, Pretoria