/ 23 May 2013

ConCourt: Zuma decision on magistrate salaries rational

Concourt: Zuma Decision On Magistrate Salaries Rational

This was in line with a decision to increase the annual remuneration of all public office-bearers by that figure.

The Association of Regional Magistrates of South Africa (Armsa) had approached the court for confirmation of part of an earlier order of the North Gauteng High Court in Pretoria that had set aside Zuma’s decision on the increase. It also found that Zuma’s decision was an “executive” decision, not an administrative one, and provisions of the Promotion of Administrative Justice Act (Paja), did not apply.

In a unanimous decision penned by Justice Bess Nkabinde, the court noted on Thursday that Zuma’s determination on the annual increase for magistrates was “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 the security, their ability to act independently will be put under strain. They should not be placed in a position of having to engage with the executive over their salaries.”

The court noted Zuma had sought the input of the Independent Commission for the Remuneration of Public Office Bearers (which had initially recommended a 7% increase) and Finance Minister Pravin Gordhan (who had advised that the inflationary outlook over the 2010/2011 had decreased to just over 4% of the consumer price index) and that his decision had to be approved by Parliament, after which it had to be published in the Government Gazette.

“In essence,” wrote Nkabinde, “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 … that renders his conduct ‘executive’ rather than ‘administrative’ in nature” and thus his decision was not reviewable under Paja.

The court found that the laws governing the determination of increases for public office bearers “represents a carefully balanced interplay between the various functionaries – executive, legislative, judicial and independent specialists – in formulating the ultimate determination”. It warned against the judiciary being placed in a position where it had to “engage in negotiations with the executive over their salaries” as this may impact its independence.

Rationality test
On the rationality test, Nkabinde leaned on the ConCourt’s previous judgments, stating “the rule of law requires that a decision, viewed objectively, must be rationally related to the purpose for which the power was given. I hasten to stress that rationality is an incident of the rule of law.”

Nkabinde ruled that Zuma’s “decision cannot be set aside on the ground of irrationality. The determination was based on expert advice about inflation and affordability [to the national treasury]”. The court found that Zuma, under section 12(1)(a) of the Magistrates Act, was only required to consider the commission’s recommendation of a 7% increase for magistrates.

“The president was not bound to adopt the recommended 7% salary adjustment,” wrote Nkabinde.

The court further emphasised that “executive action may be reviewed on narrow grounds which fall within the ambit of the principle of legality. These grounds include lawfulness and rationality. Procedural fairness is not a requirement for the exercise of executive powers 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.”

Armsa had previously argued that they had not been sufficiently consulted before Zuma made his decision.

South Africa’s magistrates have embarked on strikes this year, including a two-day stayaway this week, as they demand better pay and working conditions.

In its court papers, Armsa noted that the gap between the lowest paid judge and the highest paid regional magistrate had widened to about 20% and that magistrates’ medical fund contributions were much lower than those of judges.