Long title
To amend the Judges' Remuneration and Conditions of Employment Act,
1989, in order to provide for the remuneration and conditions of
employment of the President and judges of the Constitutional Court; and
to provide for incidental matters.
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[Act 1994_010_000 Long title unamended wef 1994/07/13]
1. Amendment of section 1 of Act 88 of 1989
Section 1 of the Judges' Remuneration and Conditions of Employment Act,
1989 (hereinafter referred to as the principal Act), is hereby amended-
(a) by the substitution for the definition of "active service" of the following definition:
"active service' means any service as a judge in a permanent capacity, and includes-
(a)
service in an acting capacity for any continuous period immediately
prior to assuming office as a judge in a permanent capacity; [and]
(b)
any other continuous period of longer than 29 days of such service in
an acting capacity prior to assuming office as a judge in a permanent
capacity; [and
(c)
service by a judge of the Supreme Court as a constitutional judge
pursuant to an appointment as such a judge in terms of the
Constitution, ]
irrespective of whether or not such service was performed prior to or after the fixed date;";
(b) by the insertion after the definition of "active service" of the following definition:
[ 'constitutional judge' means any person holding the office of-
(a) President of the Constitutional Court; or
(b) judge of the Constitutional Court ] ;";
(c) by the substitution for the definition of "judge" of the following definition:
" 'judge'-
[ (a) ] means any person holding, or any person who at the fixed date held, the office of-
[ (a) ] [ (i) ] Chief Justice of South Africa;
[ (b) ] [ (ii) ] judge of the Appellate Division of the Supreme Court of South Africa; [ or
(c)
] [ (iii) ] judge president, deputy judge president or judge of any provincial or
local division of the [said court] [Supreme Court of South Africa; and
(b) in Chapter 4 includes any person holding the office of constitutional judge; ] ";
(d) by the substitution for the definition of "revenue" of the following definition:
" 'revenue' means the [State] [ National ] Revenue Fund;";
(e) by the substitution for the definition of "salary" of the following definition:
" 'salary' means-
[ (a) in Chapter 2 ] , subject to the provisions of subsection (2), the
annual salary and the allowance payable to a judge in terms of section
2; [ and
(b) in Chapter 3, the annual salary payable to a constitutional judge in terms of section 10A ; ] " ;
(f) by the substitution for subsection (2) of the following subsection:
"(2)
If a judge who has been seconded for active service or service as a
judge of [ a state the territory of which formerly formed part of the
Republic] [ the High Court or Supreme Court of any of the former
independent states of Transkei, Bophuthatswana, Venda or Ciskei ] dies
or is discharged from active service while holding the office of chief
justice of the High Court [ or Supreme Court ] of [ that ] [such a ] state in a permanent capacity, his [ or her ] salary shall for the
purposes of this Act be deemed to be that of a judge president of a
provincial division of the Supreme Court of South Africa."; and
(g) by the substitution for subsection (3) of the following subsection:
"(3)
For the purposes of subsection (1) 'service as a judge' includes
service performed by a judge who has been seconded to serve as a judge
of [ a state the territory of which formerly formed part of the
Republic] [ the High Court or Supreme Court of any of the former
independent states of Transkei, Bophuthatswana, Venda or Ciskei ] ,
while he [ or she ] is so seconded and so serves.".
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[Act 1994_010_001 unamended wef 1994/07/13]
2. Amendment of section 2 of Act 88 of 1989, as amended by section 8 of Act 157 of 1993
Section 2 of the principal Act is hereby amended-
(a) by the substitution for subsection (3) of the following subsection:
"(3)
(a) [ A copy of ] a proclamation issued under subsection (1) shall be [
laid upon the Table in ] [submitted to ] Parliament within 14 days
after [ it was published in the Gazette if Parliament is then in
session or, if Parliament is not then in session, within 14 days after
the commencement of its next ensuing session] [ publication thereof. ]
(b)
[ If such a proclamation is rejected by all three Houses of Parliament
by resolution passed during the same session in which it was tabled,
that proclamation shall lapse on the date on which it was rejected by
the last House] [ If Parliament rejects such proclamation or any
provision thereof, such proclamation or provision shall thereafter
cease to be of force and effect to the extent to which it was so
rejected but without prejudice to the validity of anything done in
terms of such proclamation up to the date upon which it so ceased to be
of force and effect, or to any right, privilege, obligation or
liability acquired, accrued or incurred as at the said date under and
by virtue of such proclamation. ]
[
(c) The provisions of paragraph (b) shall not affect the validity of
anything done in terms of such a proclamation until the date upon which
it lapsed, or any right, privilege, obligation or liability already
acquired, accrued or incurred on the said date in terms thereof. ] ";
and
(b) by the substitution for subsection (5) of the following subsection:
"
(5) If a judge who has been seconded for service as a judge of the High
Court [ or Supreme Court ] of [ a state the territory of which
formerly formed part of the Republic] [ any of the former independent
states of Transkei, Bophuthatswana, Venda or Ciskei ] holds the office
of chief justice of that High Court [ or Supreme Court ] in a
permanent or acting capacity, and if the amount of the salary and
allowance payable to him [ or her ] in terms of subsection (1) is
less than the amount of the salary and allowance payable in terms of
that subsection to a judge president of a provincial division of the
Supreme Court of South Africa, he [ or she ] shall, in addition to
the salary and allowance payable to him [ or her ] as aforesaid, be
paid an allowance equal to the difference between the amount of the
salary and allowance payable to him [ or her ] as aforesaid and the
amount of the salary and allowance payable as aforesaid to such a judge
president.".
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[Act 1994_010_002 unamended wef 1994/07/13]
3. Substitution of section 4 of Act 88 of 1989
The following section is hereby substituted for section 4 of the principal Act:
"Continuation, of active service by certain judges
4. [ (1) ] A judge who on attaining the age of 70 years has not yet
completed 15 years' active service, may continue to perform active
service to the date on which he [ or she ] completes a period of 15
years' active service or attains the age of 75 years, whichever occurs
first, whereupon he [ or she ] shall forthwith be discharged from
active service.
[ (2) A judge who has been appointed as a constitutional judge in terms
of the Constitution, and whose term of office as constitutional judge
has not yet expired on the date when such judge is discharged from
active service in terms of paragraph (a) or (b) of section 3(1) or
subsection (1), shall continue to serve as constitutional judge until
his or her term of office as such a judge expires. ] ".
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[Act 1994_010_003 unamended wef 1994/07/13]
4. Amendment of section 7 of Act 88 of 1989
Section 7 of the principal Act is hereby amended-
(a) by the substitution for subsection (1) of the following subsection:
"(1)
A judge who has been discharged from active service, except a judge who
has been discharged from active service in terms of section 3(1)(b),
(c) or (d), shall, [subject to subsection (2A), ] be available to
perform service until he [ or she] attains the age of 75 years,
for a period or periods which, in the aggregate, amount to three months
a year, if his [ or her ] services are, after consultation with the
Minister, requested by the Chief Justice or the judge president in
whose area of jurisdiction he [ or she ] resides or of the division
to which he [ or she ] was attached when discharged from active service, or
with his [ or her ] consent, any other judge president, in
consultation with the Chief Justice or the said judge president, as the
case may be, and that judge's mental and physical health enable him [
or her ] to perform such service: Provided that a judge shall not be
precluded from voluntarily performing more than three month's service,
if his [ or her ] services are so requested: Provided further that a
judge shall perform service as mentioned in paragraph (b), (c), (d) or
(e) of subsection (2) only with his [ or her ] consent.";
(b) by the substitution for the words preceding paragraph (a) of subsection (2) of the following words:
"For the purposes of [ this section] [subsection (1) and subject to subsection (2A) ] 'service' means-";
(c) by the substitution for paragraph (d) of subsection (2) of the following paragraph:
"(d)
service as a judge of [ a state the territory of which formerly formed
part of the Republic] [ the High Court or Supreme Court of any of the
former independent states of Transkei, Bophuthatswana, Venda or Ciskei; ] ";
(d) by the insertion after subsection (2) of the following subsection:
" [ (2A) A judge who performs service as a constitutional judge after he
or she has been discharged from active service, shall for the purposes
of this Act be deemed to perform service as contemplated in subsection
(1). ] ";
(e) by the substitution for subsection (5) of the following subsection:
"(5)
[ (a) ] The registrar of the division of the Supreme Court where a judge
performs service in terms of subsection (1), shall notify the
Director-General: Justice immediately of the commencement and duration
of the service.
[ (b) The registrar of the Constitutional Court shall notify the
Director-General: Justice immediately of the commencement and duration
of service performed by a judge in terms of subsection (2A). ] ";
(f) and by the substitution for subsection (6) of the following subsection:
"(6)
The Director-General: Justice shall keep a register of all service
performed by judges in terms of [subsection] [subsections] (1) [and
(2A) ] .".
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[Act 1994_010_004 unamended wef 1994/07/13]
5. Amendment of section 8 of Act 88 of 1989
Section 8 of the principal Act is hereby amended by the substitution
for paragraph (b) of subsection (1) of the following paragraph:
"(b) in the
case of a surviving spouse of a judge who died while performing active
service as a judge, equal to two thirds of the amount to which that
judge would have been entitled if he [ or she ] was discharged from active
service [ in terms of section 3(1)(a) ] on the date of his [ or her ] death.".
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[Act 1994_010_005 unamended wef 1989/04/01]
6. Amendment of section 10 of Act 88 of 1989
Section 10 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
"(1)
A judge who holds office in a permanent capacity, who already has
attained the age of 65 years and has performed 15 years' active service
[ and who informs the Minister ] [ may resign from office by notice]
in writing [ to the President ] that he [ or she ] no longer wishes
to serve in the office of judge, [ shall be removed by the State
President from that office] [ and shall vacate his or her office upon
acceptance of such resignation. ] ".
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[Act 1994_010_006 unamended wef 1994/07/13]
7. Insertion of Chapter 3 in Act 88 of 1989
The following Chapter is hereby inserted in the principal Act after section 10:
"CHAPTER 3
Provisions applicable to the President and judges of the Constitutional Court exclusively
Remuneration of constitutional judges
[ 10A. (1) Any person who is not a judge of the Supreme Court and who
holds office as a constitutional judge shall in respect thereof, in
addition to the amounts referred to in section 12, be paid a monthly
salary at a rate determined from time to time by the President by
proclamation in the Gazette: Provided that such salary shall not be
less than that of a judge of the Appellate Division of the Supreme
Court.
(2)
A judge of the Supreme Court who has been appointed as a constitutional
judge shall, for the duration of his or her term of office as a
constitutional judge, in addition to his or her salary referred to in
section 2, be paid a monthly allowance equal to the difference, if any,
between his or her monthly salary and the salary of a constitutional
judge payable in terms of subsection (1).
(3)
The provisions of subsection (3) of section 2 shall apply mutatis
mutandis in respect of a proclamation issued under subsection (1).
(4) The salary and amounts payable in terms of subsection (1) shall be paid out of revenue.
(5)
If a judge to whom a salary is payable in terms of subsection (1) dies,
the payment of his or her salary shall cease with effect from the first
day of the month following the month in which he or she died.
(6)
No constitutional judge shall, without the consent of the Minister
accept, hold or perform any other office of profit or receive in
respect of any service any fees, emoluments or other remuneration apart
from his or her salary and any amount which may be payable to him or
her in his or her capacity as such a judge. ]
Vacation of office by constitutional judges
[ 10B. (1) A constitutional judge-
(a)
who has been appointed President of the Constitutional Court under
section 97(2) of the Constitution, shall vacate his or her office upon
the expiry of his or her term of office referred to in that section;
and
(b)
who has been appointed as such under section 99(1) of the Constitution,
shall vacate his or her office upon the expiry of his or her term of
office referred to in that section.
(2)
A constitutional judge may resign from office by notice in writing to
the President and shall vacate his or her office upon acceptance by the
President of such resignation. ]
Gratuity payable to constitutional judges after vacation of office
[ 10C. (1) A constitutional judge who is not a judge of the Supreme Court
and has vacated his or her office in terms of section 10B(1), shall be
paid a gratuity calculated in accordance with the formula-
in which formula the factor
(a) D represents the salary which at the time of his or her vacation of office was applicable to the office concerned; and
(b) E represents the period in years of his or her period in such office.
(2)
A constitutional judge who is not a judge of the Supreme Court and has
vacated his or her office in terms of section 10B(2), shall be paid a
gratuity calculated in accordance with the formula-
in which formula the factor-
(a) D represents the salary which at the time of his or her vacation of office was applicable to the office concerned; and
(b)
E represents the period of his or her term in such office, which shall
be calculated by the year and the month, and fractions of a month shall
be taken into account.
(3)
The provisions of subsection (7) of section 6 shall apply mutatis
mutandis in respect of any gratuity payable in terms of this section. ]
Amount payable to surviving spouse of constitutional judge
[ 10D. The surviving spouse of a constitutional judge who was not a judge
of the Supreme Court and who died before his or her term of office as a
constitutional judge has expired, shall be paid an amount equal to the
amount of the gratuity which would in terms of section 10C(2) have been
payable to such judge had he or she not died but, on the date of his
death, vacated his or her office in terms of that section: Provided
that factor E in the formula referred to in section 10C(2) shall be
deemed to be not less than 4. ]
Service by constitutional judge who is appointed as a judge
[ 10E. If a constitutional judge is appointed as a judge of the Supreme
Court during his or her term of office as a constitutional judge, his
or her term of office as a constitutional judge shall, for the purposes
of this Act, be deemed to be active service. ] ".
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[Act 1994_010_007 unamended wef 1994/07/13]
8. Amendment of section 11 of Act 88 of 1989
Section 11 of the principal Act is hereby amended by the substitution
for the expression "Minister of Transport Affairs" of the expression
"Minister of Transport".
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[Act 1994_010_008 unamended wef 1994/07/13]
9. Amendment of section 12 of Act 88 of 1989 as amended by section 71 of Act 129 of 1993
Section 12 of the principal Act is hereby amended-
(a) by the substitution for the words preceding paragraph (a) of subsection (1) of the following words:
"The
[State] President may, after consultation by the Minister with the
Chief Justice, [ the President of the Constitutional Court ] and the
judges president of the respective divisions, make regulations as to-";
(b) by the substitution for paragraph (c) of subsection (1) of the following paragraph:
" (c)
the method of transport of such judges, and of judges on their
discharge from active service [ or their vacation of office] or
removal from office, and of judges in the performance of service in
terms of section 7, and of the members of their families and of the
effects of judges or judges who have been discharged from active
service, [ or ] removed from office [ or who have vacated their
offices] or judges who perform service in terms of section 7 or
deceased judges, the amounts to be paid to judges or acting judges in
connection with transport and subsistence, and the circumstances in
which any such transport may be provided and any such amounts may be
paid;"; and
(c) by the substitution for paragraph (e) of subsection (1) of the following paragraph:
"(e)
the amounts payable to judges of the Appellate Division [ and of the
Constitutional Court ] in connection with their accommodation. ".
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[Act 1994_010_009 unamended wef 1994/07/13]
10. Amendment of section 15 of Act 88 of 1989
Section 15 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
"(1)
The provisions of this Act shall, subject to the provisions of
subsection (2), apply to all judges who on the fixed date have in terms
of section 10 of the Supreme Court Act, 1959 (Act No. 59 of 1959), been
appointed as judges or who are thereafter thus appointed, [ and to all
constitutional judges who have in terms of the Constitution been thus
appointed. ] ".
__________
[Act 1994_010_010 unamended wef 1994/07/13]
11. Insertion of headings in Act 88 of 1989
The principal Act is hereby amended-
(a) by the insertion before section 1 of the following heading:
"CHAPTER 1
Definitions";
(b) by the insertion before section 2 of the following heading:
"CHAPTER 2
Provisions applicable to the Chief Justice and judges of the Supreme Court exclusively"; and
(c) by the insertion before section 11 of the following heading:
"CHAPTER 4
General Provisions".
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[Act 1994_010_011 unamended wef 1994/07/13]
12. Substitution of expression "State President" in Act 88 of 1989
The principal Act is hereby amended by the substitution for the
expression "State President", wherever it occurs, of the expression
"President".
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[Act 1994_010_012 unamended wef 1994/07/13]
13. Short title and commencement
(1) This Act shall be called the Judges' Remuneration and Conditions of Employment Amendment Act, 1994.
(2) Section 5 shall be deemed to have come into operation on 1 April 1989.
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[Act 1994_010_013 unamended wef 1994/07/13]
