To provide for the establishment, constitution, objects and functions of a Magistrates Commission; to further regulate the appointment and remuneration of, and vacation of office by, magistrates; to provide that certain conditions of service of magistrates and other judicial officers may be determined by regulation; and to provide for matters in connection therewith.
'chairperson' means the chairperson of the Commission appointed in terms of section 3 (1) (a) (i); [Definition of 'chairperson', formerly definition of 'chairman', amended by s. 8 (a) of Act 35 of 1996.
'magistrate' means a judicial officer appointed under section 9 of the Magistrates' Courts Act read with section 10 of this Act; [Definition of 'magistrate' substituted by s. 2 (a) of Act 28 of 2003.
'remuneration' means the remuneration that a magistrate is entitled to in terms of section 12; [Definition of 'remuneration' inserted by s. 2 (c) of Act 28 of 2003.
[Definition of 'salary' deleted by s. 2 (b) of Act 28 of 2003.
'this Act' includes the regulations under section 16.
There is hereby established a commission, to be known as the Magistrates Commission, with the powers and duties conferred on or assigned to the Commission by or under this Act or any other law.
[S. 2 amended by s. 8 (i) of Act 35 of 1996.
[Sub-para. (xi) substituted by s. 29 (1) of Act 62 of 2000.
five fit and proper persons appointed by the President in consultation with the Cabinet, at least two of whom shall not be involved in the administration of justice or the practice of law in the ordinary course of their business.
The chairperson shall designate one of the persons referred to in paragraph (a) (iii) to (v), inclusive, as vice-chairperson of the Commission, and when the chairperson is not available, the vice-chairperson shall perform the functions assigned to the chairperson by or under this Act.
[Sub-s. (1) substituted by s. 1 (a) of Act 35 of 1996.
A member of the Commission shall be appointed or designated for a period not exceeding five years, and any such appointment or designation may be withdrawn by the appointing or designating authority, as the case may be, at any time after consultation with the Commission if in his, her or its opinion * there are sound reasons for doing so.
[Sub-s. (2) substituted by s. 1 (b) of Act 35 of 1996.
Any person whose period of office as a member of the Commission has expired, may be reappointed or redesignated. [Sub-s. (3) substituted by s. 1 (c) of Act 35 of 1996.
[Para. (e) amended by s. 8 (e) of Act 35 of 1996.
[Para. (g) amended by s. 8 (e) of Act 35 of 1996.
the efficiency of the administration of justice, in the lower courts. [Para. (h) amended by s. 8 (e) of Act 35 of 1998.
if both the chairperson and the vice-chairperson of the Commission are not available, by the majority of the members of the Commission.
[Sub-s. (1) amended by s. 8 (a) , (b) and (c) of Act 35 of 1996.
If both the chairperson and the vice-chairperson of the Commission are absent from a meeting of the Commission, the members present shall elect one of their number to preside at that meeting.
[Sub-s. (3) amended by s. 8 (a) and (b) of Act 35 of 1998.
may establish such other committees as the Commission may deem necessary, consisting of one or more members of the Commission designated by the Commission and one or more other persons, if any, whom the Commission may appoint for that purpose and for the period determined by the Commission.
[Sub-s. (1) substituted by s. 3 (a) of Act 35 of 1996.
The Commission may extend the period of an appointment made by the Commission under subsection (1) or withdraw such appointment during the period referred to in that subsection.
[Sub-s. (2) amended by s. 8 (i) of Act 35 of 1996.
Commission deems it necessary, a vice-chairperson. [Sub-s. (3) amended by s. 8 (a) , (b) and (i) of Act 35 of 1996.
(a) A committee shall, in accordance with the policy laid down by the Commission and subject to the directions of the Commission, perform such functions of the Commission as the Commission may assign to such committee.
Any function so performed by the executive committee referred to in subsection (1) (a) shall be deemed to have been performed by the Commission.
[Sub-s. (4) substituted by s. 3 (b) of Act 35 of 1996.
On completion of the functions assigned in terms of subsection (4) to a committee referred to in subsection (1) (b) , such committee shall submit a written report thereon to the Commission.
[Sub-s. (5) substituted by s. 3 (c) of Act 35 of 1996.
determining the powers and functioning of such structure.
[S. 6A inserted by s. 4 of Act 35 of 1996.
The Commission shall, pending the creation of the structure contemplated in section 6A, establish one or more committees dealing with complaints in terms of this section, consisting of one or more members of the Commission designated by the Commission and one or more other persons, if any, whom the Commission may appoint for a specified period.
The provisions of section 6 (2), (3) and (7) shall, with the necessary changes, apply to the extension of the period of appointment of a member of the committee, the designation of a chairperson of the committee and to a meeting of the committee.
The Commission shall take all such steps as the Commission deems appropriate so as to ensure that the committee is accessible to the public.
all other relevant information known to him or her.
The committee shall be competent to investigate and gather evidence in regard to any complaint referred to in subsection (4) in accordance with a procedure prescribed by regulation.
as soon as possible, make the findings of an investigation available to the complainant and to any person implicated thereby.
On the date that the regulations contemplated in section 6A come into operation, this section shall lapse.
[S. 6B inserted by s. 4 of Act 35 of 1996.
The provisions of sections 6A and 6B shall not be construed as empowering the structure, committee or the Commission to interfere with the judicial independence or the judicial functioning of a magistrate.
[S. 6C inserted by s. 4 of Act 35 of 1996.
[Para. (a) amended by s. 8 (i) of Act 35 of 1996.
[Para. (c) amended by s. 8 (i) of Act 35 of 1996.
[Para. (d) amended by s. 8 (e) of Act 35 of 1996.
[Para. (e) amended by s. 8 (i) of Act 35 of 1998.
subject to the provisions of subsection (2), report to the Minister for the information of Parliament on any matter the Commission deems fit.
A report regarding a matter contemplated in subsection (1) (f) , shall be tabled in Parliament by the Minister within 14 days after it was presented to him or her, 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.
[Sub-s. (2) amended by s. 8 (e) of Act 35 of 1996.
A committee may, subject to the directions of the Commission, exercise any of the powers referred to in subsection (1) (a) , (b) or (c).
Any person who intentionally obstructs the Commission or a committee in the exercising of its powers under subsection (1) (a) , (b) or (c) , shall be guilty of an offence and liable upon conviction to a fine or to imprisonment for a period not exceeding three months.
[Para. (f) amended by s. 8 (i) of Act 35 of 1996.
[Sub-s. (1) amended by s. 8 (k) of Act 35 of 1996.
and (xi), may be paid such allowances for travelling and subsistence expenses incurred by him or her in the performance of his or her functions in terms of this Act as the Minister may determine with the concurrence of the Minister of State Expenditure.
[Sub-s. (1) amended by s. 8 (a) of Act 35 of 1996.
A member of the Commission or a committee who is not a judge or magistrate or a member of the Commission designated in terms of section 3 (1) (a) (x) and (xi) or who is not subject to the laws governing the public service, may be paid such remuneration, including allowances for travelling and subsistence expenses incurred by him or her in the performance of his or her functions in terms of this Act, as the Minister may determine with the concurrence of the Minister of State Expenditure.
[S. 8 amended by s. 19 of Act 104 of 1996 and substituted by s. 5 of Act 35 of 1996.
The work incidental to the performance by the Commission of its functions shall be performed by officers of the Department of Justice designated by the Director-General: Justice, of whom one shall be designated by him or her as secretary of the Commission.
[S. 9 amended by s. 8 (e) of Act 35 of 1998.
The Minister shall, after consultation with the Commission, appoint magistrates in respect of lower courts under and subject to the Magistrates' Courts Act. [Date of commencement of s. 10: 11 March 1994.
Subject to the provisions of this Act, the conditions of service of a magistrate shall be determined in accordance with the regulations under section 16. [Date of commencement of s. 11: 11 March 1994.
approved by Parliament in terms of subsection (3).
President in respect of different categories of magistrates.
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 before the date of publication of the notice.
A notice issued under subsection (1) (a) must be submitted to Parliament for approval before publication thereof.
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 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.
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.
The remuneration of magistrates shall not be reduced except by an Act of Parliament.
If an officer or employee in the public service is appointed as a magistrate, the period of his or her service as a magistrate shall be reckoned as 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.
[S. 12 amended by s. 4 of Act 18 of 1996, by s. 8 (g) of Act 35 of 1996, by s. 19 of Act 104 of 1996 and by s. 35 (1) of Act 47 of 1997 and substituted by s. 3 of Act 28 of 2003.
[Date of commencement of s. 12: 11 March 1994.
if he or she attains the said age after the first day of any month, he or she shall be deemed to attain that age on the first day of the next ensuing month.
[Sub-s. (1) amended by s. 8 (c) and (g) of Act 35 of 1996 and substituted by s. 11 of Act 122 of 1998.
an investigation has been instituted by the Commission into such magistrate's fitness to hold office.
A report in which the provisional suspension in terms of paragraph (a) of a magistrate and the reasons therefor are made known, must be tabled in Parliament by the Minister within seven days of such suspension, if Parliament is then in session, or, if Parliament is not then in session, within seven days after the commencement of its next ensuing session.
Parliament must, as soon as is reasonably possible, pass a resolution as to whether or not the provisional suspension of the magistrate is confirmed.
If Parliament passes a resolution as contemplated in paragraph (c) that the provisional suspension is not confirmed, the suspension lapses.
The provisional suspension of a magistrate in terms of paragraph (a) lapses after 60 days from the date of the suspension, unless the Commission, within that period, commences its inquiry into the allegation in question by causing a written notice containing the allegation concerned to be served on the magistrate.
An inquiry referred to in paragraph (e) must be concluded as soon as possible, and the Commission must cause a report on the progress in respect of that inquiry to be submitted to Parliament every three months.
a resolution referred to in subsection (4) (c) , pass a resolution setting aside the suspension of the magistrate concerned, whereupon the suspension shall lapse forthwith.
[Sub-s. (3) amended by s. 6 of Act 35 of 1996 and substituted by s. 4 of Act 28 of 2003.
on account of incapacity to carry out the duties of his or her office efficiently, the Minister must suspend that magistrate from office or, if the magistrate is at that stage provisionally suspended in terms of subsection (1) (a) , confirm the suspension.
A report in which the suspension in terms of paragraph (a) of a magistrate and the reason therefor are made known, must be tabled in Parliament by the Minister within 14 days of such suspension, 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.
Parliament must, as soon as is reasonably possible, pass a resolution as to whether or not the restoration to his or her office of a magistrate so suspended is recommended.
the Minister shall restore the magistrate concerned to his or her office or remove him or her from office, as the case may be.
[Sub-s. (4) amended by s. 8 (g) of Act 35 of 1996 and substituted by s. 4 of Act 28 of 2003.
(a) The remuneration of a magistrate is not affected during a period of suspension in terms of subsection (3) (a) or (4) (a) , unless the Commission determines otherwise.
If the Commission determines that the remuneration of a magistrate shall be reduced or withheld in terms of paragraph (a) , a report regarding that determination and the reason therefor must be tabled in Parliament by the Minister within seven days of such determination, if Parliament is then in session, or, if Parliament is not then in session, within seven days after the commencement of its next ensuing session.
Parliament must, as soon as is reasonably possible, consider that report and pass a resolution as to whether or not the determination concerned is confirmed, either with or without amendment, or set aside.
If Parliament passes a resolution as contemplated in paragraph (c) that the determination is set aside, that determination shall lapse with effect from the date when the determination was first made.
[Sub-s. (4A) inserted by s. 4 of Act 28 of 2003.
[Sub-para. (i A) inserted by s. 4 (b) of Act 85 of 1995.
for any other reason which the Minister deems sufficient.
Any request of a magistrate contemplated in paragraph (a) (ii) shall be addressed to the Minister so that he or she receives it at least six calendar months before the date on which the magistrate wishes so to vacate his or her office, unless the Minister approves a shorter period in a specific case. [Para. (b) amended by s. 8 (c) of Act 35 of 1996.
[Sub-para. (i) amended by s. 8 (c) and (e) of Act 35 of 1996.
to have been removed from office to promote efficiency for reasons other than his or her own unfitness or incapacity; or (bb) to have been retired in accordance with section 16 (4) of the Public Service Act, 1994 (Proclamation 103 of 1994), [Item (bb) amended by s. 4 of Act 18 of 1996.
as the Minister may direct, and he or she shall be entitled to such pension benefits as he or she would have been entitled to under the pensions Act applicable to him or her if he or she had been so removed from office or had been so retired, according to the direction of the Minister.
[Sub-s. (5) amended by s. 8 (c) , (e) and (g) of Act 35 of 1996.
For the purpose of a transfer and appointment contemplated in section 15 (1) of the Public Service Act, 1994, a magistrate shall be deemed to be holding an appointment in an institution as contemplated in that section.
[Sub-s. (6) added by s. 4 (c) of Act 85 of 1995.
The period of service as a magistrate of a magistrate transferred and appointed under section 15 (1) of the Public Service Act, 1994, shall be reckoned as 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.
[Sub-s. (7) added by s. 4 (c) of Act 85 of 1995.
[Date of commencement of s. 13: 11 March 1994.
A magistrate shall possess the powers and perform the duties conferred on or assigned to him or her by or under the laws of the Republic or, in any specific case, by the Minister after consultation with the Commission.
The Minister may, after consultation with the Commission, make regulations conferring on or assigning to magistrates administrative powers and duties which do not affect the judicial independence of magistrates, including regulations empowering the Minister, after consultation with the Commission, to confer or assign administrative powers and duties of a general nature on or to magistrates.
The provisions of section 16 (2) shall apply with the necessary changes in respect of any regulation made under subsection (2).
[S. 14 amended by s. 8 (e) of Act 35 of 1996 and substituted by s. 7 of Act 66 of 1998.
[Date of commencement of s. 14: 11 March 1994.
No magistrate shall, without the consent of the Minister, perform any paid work outside his or her duties of office.
[S. 15 amended by s. 8 (g) of Act 35 of 1996.
[Date of commencement of s. 15: 11 March 1994.
which is registered with the Director-General: Justice and Constitutional Development in accordance with the regulations made under section 16, that person is for all relevant purposes of this Act regarded as the lawfully wedded spouse of that magistrate.
[S. 15A inserted by s. 5 of Act 28 of 2003.
[Para. (j) amended by s. 8 (g) of Act 35 of 1996.
[Para. (k A) inserted by s. 7 of Act 35 of 1996.
[Para. (n A) inserted by s. 6 of Act 28 of 2003.
A regulation made under this section shall be in force unless and until Parliament during the session in which the list referred to in section 17 of the Interpretation Act, 1957 (Act 33 of 1957), which relates to that regulation, has been laid upon the Table in Parliament, by resolution disapproves the regulation, in which event the regulation shall lapse with effect from a date to be specified in the resolution.
Any regulation under this section which results in State expenditure, shall be made with the concurrence of the Minister of Finance.
[Sub-s. (3) amended by s. 19 of Act 104 of 1996.
No regulation made under subsection (1), shall contain any provision which affects the service benefits of any magistrate as they existed prior to the date of commencement of this section to his or her detriment.
[Sub-s. (4) amended by s. 8 (g) of Act 35 of 1996.
Different regulations may be made under subsection (1) in respect of magistrates and other judicial officers. [Date of commencement of s. 16: 11 March 1994.
A regulation made under subsection (1) (j) , and which regulates the attendance of persons at misconduct proceedings contemplated in such a regulation, may provide that any person who contravenes a provision thereof or fails to comply therewith shall be guilty of an offence and on conviction be liable to a fine, or to imprisonment for a period not exceeding three months.
[Sub-s. (6) added by s. 8 of Act 66 of 1998.
17 A mends section 9 (1) of the Magistrates' Courts Act 32 of 1944 by substituting paragraph (a).
[Date of commencement of s. 17: 11 March 1994.
The salary paid to a magistrate immediately before the date of commencement of the first notice contemplated in section 12 (1), or any provision thereof which may be applicable to him or her, shall be deemed to have been determined in terms of that section.
The conditions of service applicable to a person referred to in subsection (1) immediately before the date of commencement of section 12, shall not be affected to his or her detriment, and no such condition of service shall, after such date, be construed or applied in a manner which is less favourable to the person concerned than the manner in which it was construed or applied immediately before the said date.
[Sub-s. (3) amended by s. 8 (g) of Act 35 of 1996.
arrangement regarding any administrative function, which applied to a magistrate or other judicial officer immediately before the date of commencement of any regulation under section 16 relating to such matter, shall remain in force until the date on which such regulation commences.
any person appointed as a magistrate after the commencement of section 10 who is not a member of the fund referred to in paragraph (a) , shall become a member of the fund and contribute thereto, until other provision is made by regulation under section 16 (1) (b) . [Sub-s. (5) added by s. 21 of Act 204 of 1993.
[Date of commencement of s. 18: 11 March 1994.
To amend the Magistrates Act, 1993, in order to further regulate the composition of the Magistrates Commission; to further regulate the suspension of magistrates; to further regulate the establishment of committees; and to provide for matters in connection therewith.
1 Amends section 3 of the Magistrates Act 90 of 1993 , as follows: paragraph (a) substitutes subsection (1); paragraph (b) substitutes subsection (2); and paragraph (c) substitutes subsection (3).
2 Amends the Afrikaans text of section 4 of the Magistrates Act 90 of 1993 by substituting paragraph (c).
3 Amends section 6 of the Magistrates Act 90 of 1993 , as follows: paragraph (a) substitutes subsection (1); paragraph (b) substitutes subsection (4); and paragraph (c) substitutes subsection (5).
4 Inserts sections 6A, 6B and 6C in the Magistrates Act 90 of 1993.
5 Substitutes section 8 of the Magistrates Act 90 of 1993.
6 Amends section 13 (3) of the Magistrates Act 90 of 1993 , as follows: paragraph (a) substitutes paragraph (a) ; paragraph (b) inserts paragraph (a A) ; paragraph (c) substitutes paragraph (c) ; paragraph (d) substitutes paragraph (d) ; and paragraph (e) substitutes paragraph (e).
7 Amends section 16 (1) of the Magistrates Act 90 of 1993 by inserting paragraph (k A).
the expression 'die Kommissie' for the expressions 'hom' and 'hy'; and paragraph (k) substitutes in section 7 (1) in the words preceding paragraph (a) the expression 'the' for the expression 'its'.
This Act shall not affect the validity of anything done by the Magistrates Commission before the commencement thereof.
A vacancy in the Magistrates Commission which arises from the commencement of this Act, shall not affect the validity of anything done by the Magistrates Commission while such vacancy remains unfilled.
This Act shall be called the Magistrates Amendment Act, 1996, and shall come into operation on a date fixed by the President by proclamation in the Gazette.
To amend the Magistrates' Courts Act, 1944, so as to effect certain consequential amendments; to make provision for the creation of administrative regions; to further regulate the appointment of magistrates; to further regulate the exercising of administrative control over the functions performed by magistrates; and to increase the penal jurisdiction of magistrates' courts; to amend the Magistrates Act, 1993, so as to regulate the assignment of administrative functions to magistrates; to make provision for certain penalty provisions to be prescribed by regulation; and to provide for matters connected therewith.
inserts the definition of 'administrative region'; paragraph (b) substitutes the definition of 'court of appeal'; paragraph (c) inserts the definition of 'head of administrative region'; paragraph (d) inserts the definition of 'Magistrates Commission'; and paragraph (e) substitutes the definition of 'Minister'.
substitutes subsection (1) (aA) ; paragraph (b) substitutes subsection (1) (b) ; and paragraph (c) substitutes subsections (3) and (4).
4 Substitutes section 10 of the Magistrates' Courts Act 32 of 1944.
2 Amends section 2 of the Magistrates' Courts Act 32 of 1944 by substituting subsection (2).
3 Amends section 9 of the Magistrates' Courts Act 32 of 1944 , as follows: paragraph 6 Amends section 92 of the Magistrates' Courts Act 32 of 1944 by substituting subsection (1) (a).
7 Substitutes section 14 of the Magistrates Act 90 of 1993.
8 Amends section 16 of the Magistrates Act 90 of 1993 by adding subsection (6).
This Act shall be called the Magistrates Amendment Act, 1998.