Frozen pay, benefits threaten judicial independence

One of the ways in which the independence of the judiciary is guaranteed by the constitution is the security of tenure enjoyed by judges. Once appointed they can be removed on only limited grounds and after an onerous and robust process culminating in a vote in the National Assembly. This serves to insulate judges from external pressures and influences by removing the prospect of financial enticement and the threat of removal from office.

But an often-overlooked aspect of the institutional independence of judges is their remuneration and conditions of employment. In terms of section 176(3) of the constitution, the salaries, allowances and benefits of judges may not be reduced. What this means is that judges’ remunerations and conditions of employment may not become any less favourable than at the time they are appointed. This is a safeguard against any coercive measures meant to cow judges into compliance that may be taken by an incumbent government.

It is also notable that the salaries of other independent officials outside the judiciary are often pegged to the level of remuneration of a high court judge.

A question that arises is what effect the sustained plateauing of judges’ remuneration and benefits would have on judicial independence. In April 2021, as in April 2020, President Cyril Ramaphosa announced that judges’ salaries and benefits would not be increased for the financial year, citing fiscal constraints and the economic effect of the Covid-19 pandemic as reasons.

In response, in April 2020 Craig Watt-Pringle SC, chair of the General Council of the bar, wrote in the organisation’s journal that in the preceding decade judges’ remuneration benefits had steadily declined. He noted that any increases had been below the consumer inflation rate, and as a result judges in 2020 were earning less in real terms than judges in 2010.

It is difficult to dismiss the bar’s concerns. As economic growth slowed and revenue collection faltered in the Zuma years, at the height of state capture, belt-tightening measures by successive finance ministers affected judges, who had little to no input in the decision-making. As a result, their share of the pie grew smaller with each passing year, leading to them earning less in relative terms than their peers did 10 years before. After all, how far can one stretch a rand? Despite Nomvula Mokonyane’s assertions, when the rand falls, picking it up is easier said than done. This undesirable situation has serious, and one might even say existential, implications for the judiciary. To begin with, while being a judge is a noble calling, it is not a particularly prized occupation. Fair enough, it has always been a thankless job despite being the backbone of the rule of law. When vacancies arise, legal practitioners are expected by the Judicial Service Commission to put themselves up for appointment. But who is attracted to actually apply is a different matter altogether. Low levels of remuneration relative to the rest of the profession do not seem to attract some of the best practitioners, most of whom have booming practices whose revenue is a multiple of a judge’s annual salary.

This disparity results in eminently qualified and suitable candidates not making themselves available for appointment because of their own financial situations, which require a certain base level of income. Judicial office is less often sought after by those professionals who would otherwise have come forward for appointment.

Without casting any aspersions, this latter point would seem to lead to an allied one, which is that the best candidates often do not put themselves up for appointment, which affects the quality of judges considered by the Judicial Service Commission. As noted in the bar’s statement, the current levels of remuneration received by judges affect their morale, which is already strained by the heavy workloads they bear. It may also encourage them to leave the bench and seek additional remuneration elsewhere, raising the spectre of conflicts of interest and partiality in adjudication.

Judicial independence and the proper and speedy administration of justice depend in large part on the institutional autonomy and security of tenure granted to judges.

Since the executive controls the fiscus, it is concerning that the levels of remuneration, in not keeping up with economic trends and inflation, seem to undermine the constitutional guarantee that judges’ remuneration and benefits may not be reduced.

As we approach the end of the financial year, we hope the Independent Commission for the Remuneration of Public Office-bearers will consider the implications for our constitutional order of the stagnant remuneration of the judiciary, the ultimate guardians of our constitution.