About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2013
>>
[2013] ZACC 13
|
|
Association of Regional Magistrates of Southern Africa v President of the Republic of South Africa and Others (CCT 91/12) [2013] ZACC 13; 2013 (7) BCLR 762 (CC) (23 May 2013)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 91/12
[2013] ZACC 13
In the matter between:
ASSOCIATION OF REGIONAL MAGISTRATES
OF SOUTHERN AFRICA
..............................................................................
Applicant
and
PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA
................................................................................
First
Respondent
INDEPENDENT COMMISSION FOR THE
REMUNERATION OF PUBLIC OFFICE-BEARERS
.................
Second
Respondent
MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
..........................................
Third
Respondent
MINISTER FOR FINANCE
............................................................
Fourth
Respondent
Heard on : 19 February 2013
Decided on : 23 May 2013
JUDGMENT
NKABINDE J (Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe
J, Mhlantla AJ, Skweyiya J, Van der Westhuizen J and Zondo
J
concurring):
Introduction
[1] This
case concerns the lawfulness of the decision of the first respondent,
the President of the Republic (President), in relation
to the
remuneration of Regional Magistrates and Regional Court Presidents.
It also implicates the constitutional principle of judicial
independence.
[2] The
applicant applies for confirmation of part of an order by the North
Gauteng High Court, Pretoria
1
(High Court). The order set aside the President’s decision to
increase the annual remuneration of Regional Magistrates and
Regional
Court Presidents by 5% and directed that the increased remuneration
was to continue to be of full force and effect until
the President
had taken the decision afresh.
2
The applicant also seeks conditional leave to appeal against part of
the order of the High Court and asks that it be varied and
replaced
with an order remitting the matter to the President to enable him to
invite and consider representations by members of
the applicant
before making the new determination. The second respondent applies
for conditional leave to appeal against the decision
of the High
Court.
Parties
[3] The
applicant is the Association of Regional Magistrates of Southern
Africa (ARMSA or applicant), a non-profit professional
association
which represents over 90% of Regional Magistrates in South Africa.
3
The President did not oppose the application in this Court.
4
The second respondent is the Independent Commission for the
Remuneration of Public Office-bearers (Commission), established under
section 2 of the Independent Remuneration of Public Office-bearers
Act
5
(Remuneration Act). The third and fourth respondents, the Minister
for Justice and Constitutional Development (Minister for Justice)
and
the Minister for Finance (Finance Minister) respectively, are not
represented before us.
Background
[4] The
Commission resolved on 27 March 2010 to make recommendations for a 7%
annual remuneration increase for public office-bearers
6
for the 2010/2011 financial year. In doing so, it considered the
previous remuneration recommendations which included the first
major
review report made in 2007 and the second major review report made in
2008, which incorporated an 11% cost-of-living adjustment
on the
first major review.
7
[5] The
Commission took into account the inflationary outlook of the Consumer
Price Index (CPI) forecast by the South African Reserve
Bank.
Inflation was predicted to average between 5.3% in 2010 and 5.4% in
2011. In the recommendation the Commission made reference
to the
approach of the Department of Public Service, in terms of which an
increase of CPI plus 1% was awarded. As the average CPI
for 2010 was
alleged to be 6% at the time, a recommended increase of an average
cost-of-living adjustment, with effect from 1 April
2010, was
considered sensible. A reduced percentage, the Commission reckoned,
would mean that public office-bearers would fall
behind the market
for two consecutive years, meaning that a third major review would be
required.
[6] As
required under both the Judges’ Remuneration and Conditions of
Employment Act
8
and the Magistrates Act,
9
the Commission consulted with the Chief Justice by way of a
letter dated 6 April 2010, about the recommendation it considered
making to the President regarding the salaries, benefits and
allowances of Judges and Magistrates.
10
It explained that the process of reviewing the remuneration of all
public office-bearers for the 2010/2011 financial year was underway.
It also proposed certain dates in April 2010 to meet with the Chief
Justice. Proposed 2010/2011 recommendations and remuneration
tables
were also attached to the letter sent to the Chief Justice together
with an explanatory memorandum. The letter was sent
to the
Magistrates Commission at the instance of the Chief Justice.
Magistrates were asked to comment by 12 May 2010. The Magistrates
Commission in turn forwarded the letter to ARMSA.
[7] In its
comments to the Chief Justice, dated 12 May 2010, ARMSA raised an
assortment of concerns in relation to the proposed
7% increase. These
included an alleged lack of consultation and transparency, the annual
cost-of-living increase, the retirement
gratuity of the head of the
Judge Presidents which exceeded that of a Regional Magistrate by more
than 300%, the gap between the
lowest paid Judge and the highest paid
Regional Magistrate which was alleged to have widened to 20%, and a
far lower contribution
to the Magistrates’ medical fund as
compared to the contribution made to Parmed, a medical aid scheme the
membership of which
includes Judges and their dependants, to which
other public office-bearers belong.
[8] In its
letter to the Chief Justice, ARMSA maintained that its comments had
been made under severe time constraints and that
the comments had not
been placed before the Commission.
It said that the fact
that legislation mandated consultation with the Chief Justice did not
preclude the Commission from engaging
with its members because they
had vested interests in the process regarding the determination of
their conditions of service. ARMSA
asked for more time to make what
it called “comprehensive submissions”.
[9] As to
the annual cost-of-living increase, ARMSA complained that the 7%
increase would have resulted in public office-bearers
receiving an
increase of 14% over the previous two years and that they would have
fallen behind for two consecutive years in comparison
to public
servants. To avoid embarking on a third major review process, ARMSA
proposed that the Commission “should consider
recommending a
general ‘across-the-board’ costs-of-living adjustment for
all public office-bearers of at least 9.5%.”
[10] ARMSA
mentioned further that the across-the-board adjustment recommended by
the Commission was improper and that in making
its 7% proposed
recommendation, the Commission failed to investigate the factors set
out in section 8(6)(i)
11
of the Remuneration Act, but relied on conclusions published in the
first and second major review reports. ARMSA said that the
position
of Regional Magistrates in relation to their remuneration had
deteriorated to a basic salary component equal to 51.1%
of a Judge’s
basic salary despite the increase in responsibility and workload.
[11] The
Finance Minister received the Commission’s proposal on 6 April
2010. He discussed the remuneration of public office-bearers
with the
Chairperson of the Commission on 7 May 2010. At that meeting, the
Finance Minister raised certain issues including the
need for
remuneration to keep track with inflation while allowing for
additional increases to recognise rising productivity. The
Finance
Minister warned that inflation was falling. He projected the CPI to
increase at an average of 5.2% for the 2010/2011 financial
year.
12
He advised the Commission that its proposals would put immense
pressure on the fiscus, and asked it to take these considerations
into account when formulating the report.
[12] On 8
September 2010, the President met with the Chairperson of the
Commission. The purpose of the meeting was to present the
Commission’s annual report to the President regarding the
recommended remuneration adjustment for public office-bearers for
2010/2011. The report records, inter alia, that the Commission
consulted with and considered the inputs received from the Finance
Minister, the Minister for Justice and the Chief Justice, before
compiling the annual recommendation for the President.
[13] After
the Commission presented its recommendation to the President on
8 September 2010, the President consulted with the
Finance
Minister. The latter advised the President that submissions made to
the Commission were based on an assessment of a CPI
increase of 5.2%
and that a determination in excess of 5% would have negative
implications for the fiscus. The Finance Minister
told the President
that the inflationary outlook for 2010/2011 had decreased further to
4.2% of the CPI and that the recommended
7% remuneration adjustment
for all public office-bearers was not affordable.
[14] The
Commission published its recommendation as required under the
Remuneration Act on 12 November 2010.
13
On the same date and at a press conference, the President announced
his intention to set the salary increase of all public office-bearers
at 5%. On or about 16 November 2010, the President’s draft
notice was sent to the Speaker of the National Assembly (NA) and
the
Chairperson of the National Council of Provinces (NCOP) for approval.
The notice was approved by resolution in the NA and NCOP
on 18 and 24
November 2010, respectively. On 26 November 2010 the President
published his decision.
14
[15]
Before the High Court, the President stated that when making the
determination, he took into account the advice of the Finance
Minister which was that a 5% adjustment was in excess of the CPI at
the time. He said that the Finance Minister pointed to the
decrease
in the CPI and highlighted important implications for the fiscus in
the event that a determination in excess of 5% was
made. He then
rejected the recommendation of 7% and adopted a 5% adjustment which
was considered to be a reasonable and affordable
determination,
having regard to the fact that Senior Management in the public
service had received an increase of 5% and that public
office-bearers
would receive the CPI adjustment plus a further increase of 0.8%.
[16] It is
against this background that I consider the issues for determination.
But before I do so, it is necessary to refer to
the relevant
constitutional and legislative framework and the litigation history.
Relevant
constitutional and statutory provisions
[17]
Section 165 of the Constitution provides, in relevant part:
“
(1)
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.”
[18]
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 established under, section
165 of
the Constitution. The manner in which judicial officers are appointed
is dealt with under section 174 of the Constitution.
Subsection (7)
deals with the appointment of judicial officers other than Judges. It
provides:
“
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.”
[19]
Section 219 of the Constitution provides for the remuneration of
persons holding public office. It provides:
“
(1) An
Act of Parliament must establish the framework for determining—
(a) 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 councils of
traditional leaders; and
(b) the upper limit of salaries,
allowances and benefits of members of provincial legislatures,
members of Executive Councils and
members of Municipal Councils of
the different categories.
(2) National legislation must
establish an independent commission to make recommendations
concerning the salaries, allowances and
benefits referred to in
subsection (1).
(3) Parliament may pass
legislation referred to in subsection (1) only after considering any
recommendations of the commission established
in terms of subsection
(2).
(4) The national executive, a
provincial executive, a municipality or any other relevant authority
may implement the national legislation
referred to in subsection (1)
only after considering any recommendations of the commission
established in terms of subsection (2).
(5) National legislation must
establish frameworks for determining salaries, allowances and
benefits of judges, the Public Protector,
the Auditor-General, and
members of any commission provided for in the Constitution, including
the broadcasting authority referred
to in section 192.”
Magistrates
are not specifically mentioned in section 219. However,
“office-bearer” is defined in the Remuneration Act
as
including “any person holding the office of magistrate who is
appointed in terms of section 9 of the Magistrates’
Court Act
(Act No. 32 of 1944), read with section 10 of the Magistrates Act”.
[20]
Section 12 of the Magistrates Act makes provision for a scheme
determining the salaries, allowances and benefits of Magistrates.
It
provides, in relevant part:
(a) Magistrates are entitled to
such salaries, allowances and 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 92 of 1997); and
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—
the Minister and the Cabinet
member responsible for finance; and
the Chief Justice or a person
designated by the Chief Justice.
A notice in terms of subsection
(1)(a) or any provision thereof may commence with effect from a date
specified in the notice,
which date may not be more than one year
after the date of publication of the notice.
(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 part; or
(ii) disapprove the notice.
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.
. . .
The remuneration of magistrates
shall not be reduced except by an Act of Parliament.”
[21]
Section 8 of the Remuneration Act provides, in relevant part:
“
(4)
The Commission shall, after taking into consideration the factors
referred to in subsection (6), publish in the
Gazette
recommendations
concerning—
the salary, allowances and
benefits of any office-bearer as defined in paragraphs (a), (d)
and (e) of the definition of ‘office-bearer’
in
section 1;
the upper limits of the
salary, allowances or benefits of any office- bearer as
defined in paragraphs (b) and (c) of
the definition of
‘office-bearer’ in section 1; and
the resources which are
necessary to enable an office-bearer as defined in paragraphs (a),
(b), (c) and (e) of the definition
of ‘office-bearer’
in section 1 to perform the office-bearer’s functions
effectively.
Recommendations referred to in
subsection (4) must be published in the
Gazette
at least once
a year in respect of each category of office-bearers and must be
submitted to Parliament before publication.
(6) When making recommendations
referred to in subsection (4) the Commission must take the following
factors into account:
(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;
current principles and levels
of remuneration, particularly in respect of organs of state, and in
society generally;
inflationary increases;
the available resources of the
state; and
any other factor which, in the
opinion of the said Commission, is relevant.”
High Court proceedings
[22] ARMSA applied to the High Court for the review and setting aside
of the decision of the President on procedural and substantive
grounds in terms of the Promotion of Administrative Justice Act
15
(PAJA) and the principle of legality, respectively. It relied,
primarily, on the following grounds:
16
(a) Once the effect of inflation was taken into account, the
President’s decision, in effect, constituted a reduction in
remuneration to Regional Magistrates and Regional Court Presidents in
violation of section 12(6) of the Magistrates Act.
17
(b) The applicant and its members were not afforded a fair
opportunity to make representations to the President or the
Commission.
This, it was argued, rendered the decision procedurally
unfair.
(c) The President and the Commission, contrary to the requirements of
section 8(6)(i) of the Remuneration Act,
18
adopted a uniform increase across-the-board for all public
office-bearers. This approach, the applicant contended, resulted in
an unfair and unlawful determination because the particular
circumstances of the applicant’s members were not considered.
(d) In doing so, the decision was unreasonable and irrational.
[23] The
President challenged these claims. He denied that his actions were
tainted by any irregularity or unlawfulness and that
his decision was
reviewable. The Commission denied that its recommended remuneration
adjustment amounted to an undifferentiated,
unfair and unlawful
recommendation.
[24] The
High Court rejected three of ARMSA’s grounds of review.
19
It upheld the challenge to the decision involving a
“one-size-fits-all” approach which, it held, was
impermissible
in terms of the relevant legislation.
20
The High Court found that if a blanket adjustment of all public
officer-bearers’ salaries were to be decided upon, the
President
was obliged to consider the circumstances of the individual
categories of public office-bearers and their particular claims.
21
The Court further found that the President was obliged to consider
whether the different categories of Magistrates should be remunerated
according to different salary scales.
22
[25] The High Court criticised the President for failing to provide
reasons for his determination other than that he paid heed
to the
recommendation of the Commission and had taken advice from the
Finance Minister.
23
It held that the decision was irrational and thus failed the legality
test.
24
The Court set aside the President’s decision, ordered remittal
to the President for the matter to be considered by him in
the light
of the judgment and ordered further that the decision of the
President would remain in force and effect until a decision
is made
afresh by the President.
25
[26] As to
whether the President’s decision amounted to administrative
action, the High Court held that it did not and therefore
that PAJA
did not apply. It held that it would be inappropriate for the
President to consult directly with ARMSA. In relation to
the issue of
procedural unfairness, the Court held:
“
[S]ection
12 of the Magistrates Act . . . 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.”
26
In this
Court
[27] These
proceedings are a sequel to the litigation in the High Court. In
seeking confirmation of paragraphs 1 and 3 of the High
Court order,
27
in terms of section 172(2)(d) of the Constitution
28
read with Rule 16(4) of the Constitutional Court Rules,
29
ARMSA reiterated the argument advanced in the High Court. ARMSA asked
that, to the extent that paragraphs 1 and 3 of the High Court
order
are not subject to confirmation, leave to appeal against the order in
paragraph 2 be granted and that the order be varied
and replaced with
one remitting the matter to the President, subject to a direction
that the President invites and considers representations
by members
of the applicant before deciding afresh. The Commission sought
conditional leave to appeal against the decision of the
High Court on
certain bases, including that the Court’s finding that the
applicant’s complaint of the “one-size-fits-all”
approach was justified and that the Commission’s explanation
for the process lacked rationality. It argued that its application
of
the uniform increase was rational because the remuneration of all
public office-bearers was already staggered in relation to
the roles,
duties, functions and responsibilities of each particular class.
Issues
[28] In
the main, the President’s decision is challenged on two
grounds, namely that it constituted “administrative
action”
under PAJA and was procedurally unfair since the applicant and its
members were not consulted, and that it was irrational.
The
preliminary issues that arise are—
(a) whether the proceedings are confirmatory proceedings under
section 172(2) of the Constitution; and if not,
(b)
whether leave to appeal should be granted.
[29] I now
consider each of the preliminary issues before I turn to the main
grounds of attack.
Are
these confirmatory proceedings?
[30]
Section 172(2)(a) of the Constitution provides:
“
The
Supreme Court of Appeal, a High Court or a court of
similar
status may make an order concerning the constitutional validity of an
Act of Parliament, a provincial Act
or
any conduct of the President
,
but an order of constitutional invalidity has no force unless it is
confirmed by the Constitutional Court.” (Emphasis added.)
[31] ARMSA
argues that the decision constituted “conduct” under
section 172(2)(a). The Commission submits that the High
Court order
is not subject to confirmation because the determination of the
salaries of public office-bearers does not amount to
“conduct”
of the President as contemplated in section 172(2)(a). This is
because the President can only take a decision
after having received
a recommendation from the Commission and because the decision has to
be ratified by Parliament before it
has any effect.
[32] In
Von Abo
,
30
this Court, per Moseneke DCJ, remarked that whether a specific power
exercised by the President under the Constitution or other
law
amounts to a constitutional obligation which only this Court may
decide remains a complex question.
31
After a discussion of certain constitutional obligations that are
specifically entrusted to the President, the Court acknowledged
that
there may be appropriate instances where conduct of the President
constitutes “conduct” that is susceptible to
the
jurisdiction of the High Court and the Supreme Court of Appeal under
sections 172(2)(a) and 167(5) of the Constitution.
32
[33] To
determine the nature of these proceedings, it is necessary to have
regard to the meaning of the language used in section
172(2)(a) of
the Constitution. The section is couched in wide language. It
contemplates that disputes concerning the constitutional
validity of
a statute or “any conduct” of the President may be
considered, in the first place, by the Supreme Court
of Appeal, a
High Court or a court of similar status. These Courts are empowered
to declare law or “any conduct” of
the President that is
inconsistent with the Constitution invalid, subject to confirmation
by this Court.
33
[34] In
reviewing the phrase “any conduct”, this Court, in
Pharmaceutical Manufacturers
,
34
said that the phrase must be accorded a generous and wide meaning.
The Court, in discussing the content of section 172(2)(a) of
the
Constitution, remarked:
“
The
section is concerned with the law-making acts of the legislatures at
the two highest levels, and the conduct of the President
who, as head
of the State and head of the Executive, is the highest functionary
within the State. The use of the words ‘any
conduct’ of
the President shows that the section is to be given a wide meaning as
far as the conduct of the President is
concerned. The apparent
purpose of the section is to ensure that this Court, as the highest
Court in constitutional matters, should
control declarations of
constitutional invalidity made against the highest organs of State.
That purpose would be defeated if an
issue concerning the legality of
conduct of the President, which raises a constitutional issue of
considerable importance, could
be characterised as not falling within
s 172(2)(a) and thereby removed from the controlling power of this
Court under that section.”
35
[35] It
will be remembered that the legality of the decision by the President
was in issue in the High Court. The President was
said to have acted
contrary to the requirements of section 8(6)(i) of the Remuneration
Act,
36
by adopting a uniform increase across-the-board for all public
office-bearers and not considering the particular circumstances
of
the members of ARMSA. This, the applicant argued, resulted in an
unfair and unlawful decision by the President. The High Court
held
that the decision of the President failed the legality test.
37
[36] Our
democratic state is founded on certain values, including the
supremacy of the Constitution and the rule of law.
38
In making a determination in terms of section 12 of the
Magistrates Act, the President exercised a public power which is
constrained by the principle of legality and which forms part of the
rule of law under the Constitution.
39
The High Court made an order concerning the lawfulness of the
decision of the President. In particular, it reviewed and set aside
the President’s decision on the basis that he failed to
consider the particular circumstances of the members of ARMSA as
required under section 8(6)(i). This amounts to “conduct”
of the President under section 172(2)(a).
[37]
Accordingly, I agree with ARMSA that the decision of the High Court
is susceptible to confirmation by this Court under section
172(2)(a).
[38]
Having concluded that these are confirmatory proceedings, both ARMSA
and the Commission have an automatic right of appeal against
the
order sought to be confirmed.
40
[39] I now
turn to the main grounds of the challenge to the President’s
decision.
Does
the decision constitute administrative action?
[40] ARMSA
submits that the High Court erred in concluding that the decision of
the President did not amount to “administrative
action”
41
under PAJA and that there was no duty on the President to offer
Regional Magistrates and Regional Court Presidents an opportunity
to
make representations prior to a decision being made.
42
It contended that the President’s power to implement national
legislation, in this case through section 12(1)(a)(i) of the
Magistrates Act, is not excluded from the definition of
administrative action. Relying on
New Clicks
,
43
ARMSA argued that the exercise of the President’s powers
amounted to the implementation of national legislation not excluded
under PAJA.
[41] The characterisation of a particular decision as being of an
administrative nature is indeed “something of a puzzle”.
44
Boundaries have to be drawn carefully in deciding which conduct
should or should not be characterised as administrative action
and,
as
SARFU
45
provides, this can only be done on a case-by-case basis.
46
This cannot be done as “a mechanical exercise in which the
court merely asks itself whether a public power is being exercised
or
a public function is being performed, and then considers whether it
falls within one or other of the exceptions.”
47
Courts should guard against a return to the classification of
functions approach. In determining whether particular conduct
constitutes
administrative action, the focus must be on the nature of
the power exercised rather than upon the functionary.
48
[42] I am
unable to agree with the applicant’s argument that the
President’s power under section 12 of the Magistrates
Act
amounted to administrative action. It is noteworthy that section
33(1) of the Constitution
49
uses the adjective “administrative” as opposed to
“executive” to qualify the word “action”.
As
this Court stated in
SARFU
,
50
this suggests that the test for determining whether conduct
constitutes administrative action is not whether the action concerned
is performed by a member of the executive arm of government.
51
One needs to consider carefully whether the exercise of the power or
taking of the decision by the President, in terms of section
12,
constituted administrative action.
52
It is only after the question is answered that one may consider the
constraints imposed upon the exercise of that power.
[43]
Section 12 reveals that different functionaries are involved at
different levels of the process of making a decision. The applicable
statutory scheme for the determination of the remuneration of public
office-bearers (through mandatory consultations, recommendations
and
approvals) represents a carefully balanced interplay between the
various functionaries ‒ executive, legislative, judicial
and
independent specialists ‒ in formulating the ultimate
determination. It must also be borne in mind that the determination
relates to the remuneration of members of the Judiciary, an issue
that goes to the heart of judicial independence and is of fundamental
importance to our constitutional state. Adequate remuneration is an
aspect of judicial independence. If judicial officers lack
that
security, their ability to act independently will be put under
strain. They should not be placed in a position of having to
engage
in negotiations with the Executive over their salaries.
53
Having set up such a particular scheme to determine this sensitive
issue, I am of the opinion that the impugned conduct of the
President, located as it is at the heart of the scheme, cannot be
“conduct of the bureaucracy . . . in carrying out the daily
functions of the State”.
54
[44] The
President makes a determination only after receiving, and taking into
account, the recommendation of the Commission.
55
That recommendation must have accounted for certain factors
56
and must be the product of consultation with various officials and
organs of state with the relevant expertise and knowledge, including
the Chief Justice and the Finance Minister.
57
The determination that the President makes must be approved by
Parliament, and Parliament in turn may approve, partially approve
or
disapprove a determination proposed by the President.
58
Finally, section 12 specifically requires that the
determination, duly approved by Parliament, be published in the
Government Gazette
.
59
[45] In
essence, when the President made the determination he was exercising
a power which impacts on a matter that is of importance
to the
independence of the Judiciary, in terms of a particular
constitutional and legislative scheme, subject to clear statutory
checks, balances and standards of review. In the light of this
Court’s decision in
Masetlha
,
60
that renders his conduct “executive” rather than
“administrative” in nature. Given the significance of
the
President’s decision, the careful manner in which Parliament
has prescribed that it should be taken and the complexity
of the
ultimate determination, I conclude that the President’s
decision did not constitute administrative action and that
PAJA does
not apply. The applicant’s argument on this issue must thus
fail. Next for determination is whether the decision
is irrational.
Is the
decision rational?
[46] The
rationality challenge is directed at the uniform remuneration
adjustment approach adopted by the Commission and the President
in
making the recommendation and the decision, respectively. The High
Court held that the complaint in this regard against the
Commission
“appears to be well justified” because “its
explanation of the process it followed lacks rationality.”
61
Regarding the President’s conduct, the Court went on to say:
“
From
the record filed by the [President] in reaction [to] the notice in
terms of Rule 53 it is clear that, in adopting the [Commission’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 [President failed] 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. . . . [H]e was
furthermore obliged to consider
whether the different categories of magistrates should be remunerated
according to different salary
scales. No such investigation was
undertaken.
The [President] defends his
failure to provide any reasons for his determination on the basis
that he paid heed to the [Commission’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.”
62
[47] The
Commission argued that the High Court erred in upholding the fourth
ground, that a uniform, “one-size-fit-all”
increase in
the remuneration for all public office-bearers was irrational.
[48] The
Remuneration Act and section 219 of the Constitution entrust certain
powers and duties to the Commission.
63
The Commission is required under section 219(2) to “make
recommendations concerning the salaries, allowances and benefits”
of public office-bearers. In making the recommendation to the
President, the Commission may conduct an inquiry into matters it
is
empowered to do in terms of the Constitution and the Remuneration
Act. It has broad powers under section 8 of the Remuneration
Act.
64
The Commission is enjoined to publish annually in the
Government
Gazette
recommendations regarding the salary, allowances and
benefits of public office-bearers. It must publish its recommendation
in the
Government Gazette
and must take the factors set out in
subsection (6) into account when making a recommendation.
[49] The
exercise of any public power must conform to the requirements of the
Constitution. Similarly the principle of the rule
of law which is a
foundational principle of the Constitution, and the exercise of
public power under consideration in the present
matter must also
conform to the requirements of the Magistrates Act and the
Remuneration Act. The rule of law requires that a decision,
viewed
objectively, must be rationally related to the purpose for which the
power was given.
65
I hasten to stress that rationality is an incident of the rule of
law.
66
[50] More
recently, this Court in
Democratic Alliance
,
67
per Yacoob ADCJ, reaffirmed the test for rationality review. It held:
“
[R]ationality
review is really concerned with the evaluation of a relationship
between means and ends: the relationship, connection
or link (as it
is variously referred to) between the means employed to achieve a
particular purpose on the one hand and the purpose
or end itself. The
aim of the evaluation of the relationship is not to determine whether
some means will achieve the purpose better
than others but only
whether the means employed are rationally related to the purpose for
which the power was conferred. Once there
is a rational relationship,
an executive decision of the kind with which we are here concerned is
constitutional.”
68
[51] This
Court, in
Democratic Alliance
cited
Albutt
69
as authority for the proposition that “both the process by
which the decision is made and the decision itself must be
rational.”
70
[52] In
casu, the power to make a determination is entrusted to the
President. He is enjoined, in terms of section 12, to
make the
determination after taking into consideration the recommendation of
the Commission. Self-evidently, the President is not
obliged to
follow the recommendation. He may, after considering the
recommendation and other factors that may be brought to his
attention
by the Finance Minister (as is the case here) and the Minister for
Justice, accept or reject parts of the recommendation.
[53]
Against the above setting, I now consider whether the process
followed by the Commission was irrational, as the applicant contends.
[54] Put
simply, the applicant’s complaint amounts to the fact that the
Commission and the President failed to treat its members
as a
category of public office-bearers who were previously left out when
all other categories of public office-bearers’ remuneration
packages were reviewed and appropriately determined. The applicant
points out that the remuneration of Regional Magistrates was
left to
lag behind that of High Court Judges, despite the increase in their
workload as a result of the expanded Regional Court
jurisdiction. The
5% salary increase across-the-board, the applicant contends, did not
take into account the role, status, duties,
functions and
responsibilities of the Magistrates concerned. In its recommendation
presented to the President on 8 September 2010,
the Commission stated
that it consulted with and considered the input received from the
Finance Minister, Minister for Justice
and the Chief Justice before
submitting the annual recommendation to the President. There is no
evidence to gainsay this.
[55] In
its opposing papers, the Commission said that in making a
recommendation it considered, as it is required to do, “the
role, status, duties, functions and responsibilities of the
office-bearers concerned.” It explained that the various
categories
of office-bearers are pegged differently. The Commission
further said that members of Parliament, cabinet members, and
traditional
authorities share a common character as public
office-bearers and a uniform adjustment impacts on these categories
differently.
For these reasons, it said that it was inappropriate to
describe it as a “one-size-fits-all” adjustment. Again,
save
for the applicant’s insistence that the Commission adopted
a “one-size-fits-all” approach, the contentions of
the
Commission in this regard were not refuted. It means that the process
before the Commission cannot be faulted.
[56] In
any event, the finding by the High Court that there was no
differentiation between classes of public office-bearers
71
is also not borne out by evidence.
72
Different categories of Magistrates were remunerated according to
different salary scales. This is underscored by the contents
of the
Schedule dealing with the salaries of Magistrates. Evidently, that
Schedule tables a different grade for the Chief Magistrate
and
Regional Court Presidents; for the Regional Magistrates and Chief
Magistrates; and for Senior Magistrates and Magistrates.
Based on
this and the Commission’s response in its opposing papers, it
can be inferred that the Commission did take into
account the
different roles, status, duties, functions and responsibilities of
the public office-bearers concerned. It follows
that the High Court
also erred in this regard.
[57] ARMSA
contends further that the President irrationally reduced the
recommended percentage. The decision cannot be set aside
on the
ground of irrationality. The determination was based on expert advice
about inflation and affordability. The President is
only required
under section 12(1)(a) to consider the recommendation of the
Commission.
73
The President was not bound to adopt the recommended 7% salary
adjustment.
[58] There is no basis for the finding that the President was
“obliged to consider whether the different categories of
Magistrates
should be remunerated according to different salary
scales.”
74
While one appreciates that section 12 needs to be interpreted
consistently with the Constitution to exclude a construction that
would be inconsistent with judicial independence under section 165 of
the Constitution,
75
the President is entitled to rely on the recommendation of the
Commission. He is not obliged to perform the specialist research
of
the Commission or hear submissions from individual categories of
public office-bearers again should he decide to adjust the
recommended salary increase. The processes before the Commission and
the President, particularly after the latter had considered
the
recommendation and consulted with the Finance Minister, were
rational.
[59] A
further issue relates to ARMSA’s contention that neither it nor
its members were consulted either by the Commission
or the President.
The applicant argues that the decision was procedurally unfair. The
challenge is without merit. With regard to
the decision of the
President, a procedural fairness challenge is not competent because
the decision he took did not amount to
administrative action. As it
was pronounced in
Masetlha
,
76
executive action may be reviewed on narrow grounds which fall within
the ambit of the principle of legality. These grounds include
lawfulness and rationality.
77
Procedural fairness is not a requirement for the exercise of
executive powers
78
and therefore executive action cannot be challenged on the ground
that the affected party was not given a hearing unless a hearing
is
specifically required by the enabling statute. Section 12 of the
Magistrates Act does not require the President to hear Magistrates
before determining their salaries.
[60] The
scheme of both the Remuneration Act and Magistrates Act ensures that
judicial officers do not have to engage in direct
negotiations with
the Executive over conditions of employment, including salaries. The
purpose of this scheme is to safeguard the
independence of judicial
officers. In this regard, I agree with the High Court that:
“
[T]he
procedure decreed by section 12 of the Magistrates’ Act read
with the relevant provisions of the [Remuneration Act],
is
specifically designed to ensure that the judiciary . . . and judicial
officers . . . do not have to engage in direct salary
negotiations
with the executive, which might affect their independence. The
perceived failure to consult [ARMSA] or its members
prior to the
[President] finalising his determination cannot therefore be regarded
as inappropriate or unfair and this argument
must be dismissed.”
79
[61] The
procedural fairness attack directed at the Commission’s
recommendation must also fail for these reasons. First, the
Remuneration Act does not require the Commission to consult public
office-bearers individually before making a recommendation.
Instead,
the Magistrates Act lists persons whom the Commission must consult.
They include the Chief Justice, who represents the
entire Judiciary
in such consultations. Second, in this case the Chief Justice
consulted ARMSA before submitting representations
to the Commission.
As stated earlier, representations made to him by ARMSA were
forwarded to the Commission. ARMSA failed to show
that those
representations were not taken into account by the Commission when it
was compiling the recommendation for the President.
[62] For
these reasons, I do not agree with the argument by ARMSA that the
determination was irrational. Therefore, the argument
must also fail
and the order of the High Court on this ground must be overturned.
[63] It is
nonetheless important to acknowledge that judicial officers, both in
the District and Regional Courts are a vital part
of the Judiciary
and the administration of justice. The criminal and civil
jurisdiction of both Courts has been increased substantially
over the
last few years. For instance, until recently, Regional Courts had no
civil jurisdiction and were confined to hearing criminal
cases. In
2010 Regional Court’s civil jurisdiction in designated areas
increased to range between R100 000 and R300 000
in terms
of the Jurisdiction of Regional Courts Amendment Act.
80
The effect of Regional Courts’ expanded jurisdiction is that
the workload, responsibilities and expertise of Regional Magistrates
and Regional Court Presidents have increased significantly. In
exercising civil jurisdiction the Regional Courts are absorbing
a
significant portion of the workload of both District Courts and High
Courts. It is accordingly important that their conditions
of service
including remuneration are adequate and consistent with the scheme
envisaged by the Constitution and the relevant legislation
under it.
Costs
[64] The
applicant has asked for costs, including the costs of two counsel to
be paid by the President. These are confirmatory proceedings
in which
the President’s decision has not been shown to have been
irrational. Although the applicant has not been successful,
I do not
think there should be a costs order against it. This litigation is
essentially constitutional in nature and the applicant,
albeit
unsuccessful, was entitled to approach the Court to challenge the
decision which provoked this litigation. For these reasons,
there
should be no order as to costs.
Order
[65] In
the event, the following order is made:
1. The order of the North Gauteng High Court, Pretoria is not
confirmed and is set aside.
2. In its place the following order is made:
“
The
application is dismissed.”
3. There is no order as to costs.
For the
Applicant: Advocate M Chaskalson SC and Advocate S Budlender
instructed by Rudman Attorneys.
For the
Second Respondent: Advocate I Semenya SC and Advocate N Mayet
instructed by the State Attorney.
1
Association
of Regional Magistrates of Southern Africa v President of the
Republic of South Africa and Others
[2012] ZAGPPHC 186 (High
Court judgment).
2
The
order of the High Court reads, in relevant part:
“
1. The first respondent’s
decision taken on or about the 16
th
November 2010 and published
on 26
th
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 paragraph 1 shall
continue to be of full force and effect until the first respondent
has taken
the decision afresh”.
3
See
[63] below which elaborates on the expanded jurisdiction of, among
others, Regional Courts.
4
The
President opposed the application and deposed to an answering
affidavit in the High Court.
5
92
of 1997.
6
See
[19] below for the definition of “office-bearer”.
7
The
review report of 2007 was not approved in that year. However, the
Commission’s recommendation of 2008 incorporated a
further 11%
cost-of-living adjustment on the 2007 review. These 2007 and 2008
reviews were approved by the President in 2008
and they provided
significant changes to the pension and medical aid benefits of
public office-bearers which were included in
their total packages.
The main reason for the review was due to the remuneration levels of
public office-bearers not being on
par with the rest of the market,
nationally and internationally.
8
Section
2 of Act 47 of 2001, as amended by the Judicial Officers (Amendment
of Conditions of Service) Act 28 of 2003.
9
Section
12 of Act 90 of 1993 (Magistrates Act).
10
The
recommendation was per the Commission’s resolution at the
meeting held on 27 March 2010.
11
The
relevant parts of section 8 are set out in [21] below.
12
The
Finance Minister attached a technical note outlining the fiscal
situation in South Africa and some of the pressures being
faced by
the fiscus, which he said were exacerbated by the European financial
crisis and the uncertainty resulting from the crisis.
13
Government
Gazette
33768 GN 1061, 12 November 2010.
14
Government
Gazette
33800 GN 71, 26 November 2010.
15
3
of 2000.
16
High
Court judgment above n 1 at para 8.
17
Relevant
provisions of section 12 are set out at [20] above.
18
See
[21] above.
19
High
Court judgment above n 1 at paras 39-41.
20
Id
at para 43.
21
Id
at para 44.
22
Id.
23
Id
at para 45.
24
Id
at para 46.
25
Above
n 2.
26
High
Court judgment above n 1 at para 40.
27
Above
n 2.
28
Section
172(2)(d) provides:
“
Any person or organ of state
with a sufficient interest may appeal, or apply, directly to the
Constitutional Court to confirm
or vary an order of constitutional
invalidity by a court in terms of this subsection.”
29
Rule
16(4) provides:
“
A person or organ of state
entitled to do so and desirous of applying for the confirmation of
an order in terms of section 172(2)(d)
of the Constitution shall,
within 15 days of the making of such order, lodge an application for
such confirmation with the Registrar
and a copy thereof with the
Registrar of the court which made the order, whereupon the matter
shall be disposed of in accordance
with directions given by the
Chief Justice.”
30
Von
Abo v President of the Republic of South Afric
a
[2009] ZACC 15
;
2009 (5) SA 345
(CC);
2009 (10)
BCLR 1052
(CC)
.
31
Id
at para 37.
32
Id
at para 40.
33
See
[30] above.
34
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex
parte President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC)
(
Pharmaceutical Manufacturers
).
35
Id
at para 56.
36
See
[21] above.
37
High
Court judgment above n 1 at para 46.
38
Section
1(c) of the Constitution.
39
See
Democratic Alliance v President of the Republic of South Africa
and Others
[2012] ZACC 24
;
2013 (1) SA 248
(CC);
2012 (12) BCLR
1297
(CC) at para 27 and
Albutt v Centre for the Study of
Violence and Reconciliation and Others
[2010] ZACC 4
;
2010 (3)
SA 293
(CC);
2010 (5) BCLR 391
(CC) at para 49.
40
Von
Abo
above n 30 at para 13.
41
Section
1 of PAJA, in relevant part, defines “administrative action”
to mean:
“
[A]ny decision taken, or any
failure to take a decision, by—
an organ of state, when—
. . .
(ii) exercising a public power or performing a public
function in terms of any legislation; or
a natural or juristic person, other than an organ of
state, when exercising a public power or performing a public
function in
terms of the empowering provision,
which adversely affects the rights of any person and
which has a direct, external legal effect, but does not include—
(aa) the executive powers or functions of the National
Executive, including the powers or functions referred to in sections
.
. . 85(2) (b), (c), (d) and (e) . . . of the Constitution”.
42
High
Court judgment above n 1 at paras 33-7.
43
Minister
of Health and Another NO v New Clicks South Africa
(
Pty
)
Ltd and Others (Treatment Action Campaign and
Another as
Amici Curiae
)
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006
(1) BCLR 1
(CC)
(
New
Clicks
) at paras
124-6. This Court, per Chaskalson CJ, held:
“
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 section
85(2)(b), (c), (d) and (e), but excludes
from the list section 85(2)(a). . . . The omission of subparagraph
(2)(a) from the specified
list of exclusions is significant. . . .
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.”
44
See
Sokhela and Others v MEC for Agriculture and Environmental
Affairs (KwaZulu-Natal
)
and Others
2010 (5) SA 574
(KZP)
(
Sokhela
) at para 61, quoting Hoexter
Administrative Law
in South Africa
(Juta & Co, Ltd, Cape Town 2007) at 190-1.
45
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC)
(
SARFU
)
.
46
Id
at para 143. In
Grey’s Marine Hout Bay (Pty) Ltd and Others
v Minister of Public Works and Others
2005 (6) SA 313 (SCA)
(
Grey’s Marine
) the Supreme Court of Appeal, relying on
SARFU
, remarked at paras 24 and 25 that:
“
Administrative action is
rather, in general terms, the conduct of the bureaucracy (whoever
the bureaucratic functionary might
be) in carrying out the daily
functions of the State, which necessarily involves the application
of policy, usually after its
translation into law, with direct and
immediate consequences for individuals or groups of individuals.
The law reports are replete with examples of conduct of
that kind. But the exercise of public power generally occurs as a
continuum
with no bright line marking the transition from one form
to another and it is in that transitional area in particular that
‘(d)ifficult
boundaries may have to be drawn in deciding what
should and what should not be characterised as administrative action
for the
purposes of s 33’.” (Footnotes omitted.)
47
Sokhela
above n 44.
48
SARFU
above n 45 at para 141. See also
Grey’s Marine
above n
46 at paras 24-5.
49
Section
33(1) reads:
“
Everyone has the right to
administrative
action
that
is lawful, reasonable and procedurally fair.” (Emphasis
added.)
50
Above
n 45.
51
Id
at para 141.
52
Id
at paras 141-3.
53
Van
Rooyen and Others v The State and Others (General Council of the Bar
of South Africa Intervening)
[2002]
ZACC 8
;
2002 (5) SA 246
(CC);
2002 (8) BCLR 810
(CC) (
Van
Rooyen
)
at paras 138-9.
54
Grey’s
Marine
above n 46 at para 24.
55
Section
12(1)(a)(i) of the Magistrates Act at [20] above.
56
Section
8(6) of the Remuneration Act.
57
Section
12(1)(c) of the Magistrates Act.
58
Id
section 12(3).
59
Id
s
ection 12(1)(a) read with section 12(3)(a).
60
Masetlha
v President of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1)
BCLR 1
(CC) at para 77.
61
High
Court judgment above n 1 at para 43.
62
Id
at paras 44-5.
63
Section
8(1) of the Remuneration Act, see [21] above.
64
These
include the powers contemplated in the Commissions Act 8 of 1947 in
respect of persons who give evidence before it or who
have been
summoned to attend any meeting of the Commission as a witness or to
produce any book, document or object. The Commission
may conduct or
cause to be conducted such research or obtain such information from
the Secretary to Parliament, the secretary
to any provincial
legislature, the secretary to the Council of Traditional Leaders,
the secretary to any provincial house of
traditional leaders, the
chief executive officer of any municipality or any office-bearers as
may be necessary for the performance
of the functions of the
Commission under the Remuneration Act and section 219 or any other
law.
65
Democratic
Alliance
above n 39 at para 27. See
also
Albutt
above
n 39 at para 49.
66
See
Law Society of South Africa v Minister for Transport
[2010]
ZACC 25
;
2011 (1) SA 400
(CC);
2011 (2) BCLR 150
(CC) at para 12;
Poverty Alleviation Network v President of the Republic of South
Africa
[2010] ZACC 5
;
2010 (6) BCLR 520
(CC) at para 65; and
Albutt
above n 39 at para 49.
67
Democratic
Alliance
above n 39 at para 27.
68
Id
at para 32.
69
Albutt
above n 39 at paras 49-50.
70
Democratic
Alliance
a
bove n 39 at para 34.
71
High
Court judgment above n 1 at paras 41-3.
72
Schedule
1 of the Commission’s memorandum accompanying the
recommendation dealt with the salary of the National Executive
and
the Deputy Ministers; Schedule 2 dealt with the salary of the
National Parliament; Schedule 3 with the Provincial Executives
and
Legislatures; Schedule 4 with Local Government; Schedule 5 with
Judges; Schedule 6 with Magistrates; and Schedule 7 with
Traditional
Leaders.
73
Section
12(1)(a)(i) of the Magistrates Act.
74
High
Court judgment above n 1 at para 44.
75
Van
Rooyen
above n 53
at para 88.
76
Masetlha
above n 60 at paras 23, 78 and 81.
77
Id
at para 81.
78
Id
at para 78.
79
High
Court judgment above n 1 at para 40. These sentiments endorse the
remarks of this Court, per Chaskalson CJ, in
Van Rooyen
above
n 53. In that case the Court endorsed the approach taken in
De
Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC), which identified three fundamental pillars
of institutional independence: security of tenure; financial
security; and institutional
independence concerning matters that
relate directly to the exercise of judicial function.
80
31
of 2008 read with
Government Gazette
33418 GN 670,
29 July 2010.