The Department of Justice and Correctional Services has warned that it would be illegal, improper and unbecoming for judicial officers to go on an industrial action.
This comes after the Judicial Officers Association of South Africa (Joasa) threatened strike action over the pay gap between magistrates and judges.
However, the department emphasised that it was sympathetic to the issues raised by the organisation. The body represents magistrates who are threatening strike action due to the salary disparities.
Industrial or strike action would be improper and illegal
The department said any industrial or strike action by the magistrates would be improper and illegal because judicial officers are not employees. The Labour Relations Act that provides for protected participation in strikes or industrial action does not apply to judicial officers. This makes any such strike illegal.
Chrispin Phiri, spokesperson for Justice and Correctional Services Minister Ronald Lamola, confirmed the matter. He said the department is aware that Joasa is threatening strike action over the pay gap between magistrates and judges.
“We note media reports that Joasa is threatening to embark on strike action over the pay gap between magistrates and judges. [The department is] not unsympathetic to the issues raised by Joasa. …Any proposed industrial or ‘strike’ action undertaken by judicial officers would be improper. [Such action is] unbecoming [for] the role and position of a judicial officer.
A government gazette was published in September last year detailing salaries and allowances of magistrates and judges. It revealed that a district magistrate currently receives R1,077,210 per annum, effective from April 1 2022. A judge of the High Court receives R 1,997, 130 per annum, effective from April 1 2022.
“Judicial officers are not employees. Therefore the Labour Relations Act that provides for the protected participation in strikes or industrial action does not apply. This makes any such strike illegal.
“In the Van Rooyen judgement, the Constitutional Court held that ‘Judicial Officers ought not to be placed in a position of having to do this or engage in negotiations with the executive over their salaries’.
Judicial officers cannot engage in industrial action
“They are judicial officers, not employees, and cannot and should not resort to industrial action to advance the interests in their conditions of service.
“We must accept that judicial officers do not belong to trade unions, they are officers of the court and public office bearers. Joasa is not a trade union. So, to act as if one belongs to a trade union is improper,” said Phiri.
This past Sunday, Sunday Times newspaper reported about Joasa, which represents about 800 of the country’s magistrates. It said the organisation is considering whether to challenge their conditions of service. The report also said it considered a strike if their grievances over their salaries are not resolved. Deadline given was before the end of the parliamentary term in May.
The Sunday Times reported that Joasa has written to parliament to ventilate their frustrations. This over the Independent Commission for the Remuneration of Public Office-Bearers’ snail pace in dealing with the review of magistrates’ salaries across the country.
Phiri said the department does not determine the salaries of magistrates.
Department not involved with salaries
“At the outset it should be remembered that the salaries and conditions of service of magistrates are not determined by the [department]. This is because the judiciary is independent. Magistrates are not public servants.
“Because the judiciary is independent, their salaries are determined by the president. This after having considered the recommendations of the Independent Commission for the Remuneration of Public Office-Bearers Act. Furthermore, parliament must approve or disapprove the determination made by the president. The same procedure is followed in determination of the salaries of the judges,” said Phiri.
Phiri said Lamola has raised his concerns regarding the delays with the annual increments of the judiciary with the chairperson of the remuneration commission. “It was also raised when we briefed parliament’s Portfolio Committee on Justice and Correctional Services and the Select Committee on Security and Justice.”
Phiri said Joasa is not the only voluntary association representing magistrates.
“There are also magistrates who are not members of any voluntary association. There are currently 2024 posts of magistrates.
“Joasa is well aware that there is a Lower Courts Remuneration Committee. It (committee) communicates with the [Remuneration commission] on the annual salary adjustment of magistrates. This includes the major review, which is being done on all office bearers.
Independent commission on remuneration
“The Independent Commission itself should be approached regarding the progress with this major review,” said Phiri.
Speaking to Newzroom Afrika on Monday, Joasa president Neelan Karikan said parliament responded to the organisation on Monday afternoon. It and acknowledged receipt of their letter detailing their decade-long grievances regarding their salary increment.
Karikan said parliament informed the body of magistrates that their matter will be placed on the agenda of the next meeting of parliament’s select committee of security and justice.
The Joasa leader said the organisation is seeking a legal opinion on whether they can go on strike.
