The Association of Regional Magistrates of Southern Africa v The President of the Republic of South Africa and Others

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author
Vote
CCT 91/12
North Gauteng High Court, 3 Sep. 2012 19 Feb. 2013
23 May 2013 Nkabinde J. Unanimous

By Duncan Wild on 23 May 2013.

The case is an application to confirm an order of invalidity of the decision by the Independent Commission for the Remuneration of Public Office Bearers published by the President on 26 November 2010 that increased the remuneration of public officer bearers, including Regional Magistrates and Regional Court Presidents (“the Magistrates“) by 5% backdated to 1 April 2010.The decision was challenged in the High Court on the basis that: (1) due to the effect of inflation the “increase” was in fact a decrease, which was impermissible; (2) the Magistrates were not given adequate opportunity to make representations prior to the President’s decision; (3) the President adopted a “one-size-fits-all” approach to the increase without differentiating between different categories of office bearers as required by the Remuneration Commission Act; and (4) the President did not take into account relevant considerations, was unreasonable and irrational.

The High Court found the decision was not administrative action and so not reviewable under the Promotion of Administrative Justice Act, but was reviewable under the principle of legality.  The High Court dismissed the first two grounds on which the decision was challenged, but found that the decision should have and did not differentiate between different categories of office bearer, and so was invalid in respect of the increase applicable to the Magistrates. 

The Constitutional Court, in a unanimous decision authored by Justice Nkabinde, agreed that the decision was no reviewable under the Promotion of Administrative Justice Act, but under the principle of legality.  The Constitutional Court rejected the Magistrate’s argument that the decision was procedurally unfair, as the Magistrate’s failed to show their representations were not taken into account by the President, and that the Magistrates Act did not requires the President to hear the Magistrate’s prior to taking a decision. 

The Constitutional Court also found that the President’s decision was a rational one as there was no indication the President did not consider the different roles and responsibilities of Magistrates. 

The application was therefore dismissed and the High Court order set aside.

Download the judgment here.

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