Regulations for Judicial Officers in Lower Courts: Presentation to Select Committee
This presentation outlines the regulations governing judicial officers in lower courts, focusing on leave categories, vacation leave provisioning, and the vacation leave cycle. It highlights the historical background, the Magistrates Act of 1993, and the recent amendments effective from January 1, 2020. The detailed content covers various types of leave, rules, and gratuity provisions related to vacation leave for magistrates.
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Presentation Transcript
PRESENTATION TO THE SELECT COMMITTEE ON SECURITY AND JUSTICE 11 JUNE 2020 Regulations for judicial officers in the lower courts, 1993 (as amended with effect from 1 January 2020)
INTRODUCTION Historically magistrates were Public Servants. Magistrates Act, 1993 created the Magistrates Commission as statutory body The Minister may, after the Commission has made a recommendation, make regulations; Minister must publish the regulations; The regulations made shall be enforce unless and until Parliament, by resolution, disapproves, the regulation in which case it shall lapse from a date specified in the resolution; The lapsing of a regulation shall not affect the validity of anything done under the regulation prior to the date mentioned in the resolution. Reg. 38 referred to repealed Public Service Regulations and Public Service Staff Code in respect of vacation, sick and special leave Magistrate accumulated leave which increased State liability; New regulations made with effect from 1 January 2020 to omit reference to the Public Service Staff Code and Public Service Regulations. New Regulations substituted Regulations 38, 38A, 38B and 38C
LEAVE CATEGORIES Vacation Leave (reg. 38A, D and F) Normal Sick Leave (reg. 38A and 38J) Additional Sick Leave (reg. 38J(14) (16)) Special Leave for; Special Sick Leave (reg. 38K) Pre-Natal Leave (reg. 38M) Pregnancy and Confinement (reg. 38N) Adoption (reg. 38O) Family Responsibility (reg. 38P) Resettlement as result of transfer (reg. 38 Q) Exceptional Leave (reg. 38R)
VACATION LEAVE PROVISIONING Vacation leave with remuneration Regulations 38A(1), (2), 5(a), 38D(1)-(3) and 38F Vacation leave without remuneration regulation 38I Leave gratuity Regulations 38G and 38H
VACATION LEAVE CYCLE Calendar Year: 30 days vacation leave per calendar year starting each year on 1 January (reg. 38 A(1)); Full compliment of 30 days vacation or pro rata leave recorded to credit at commencement of each year (reg. 38D(1) and (2)); Reduced on pro rata basis if magistrate vacates office during the vacation leave cycle (reg.38D(3)) Pro rata formula if appointed after 1 January each year (reg. 38A (5)) Three year vacation leave cycle: The three year vacation leave cycle started on 1 January 2020.
VACATION LEAVE RULES First year: May take all leave entitled to 30 days or pro rata (reg. 38A(2)(a); Must take at least 10 consecutive days vacation leave (reg. 38A(2)(a); Maximum of 15 days carried over to the second year (reg. 38(2)(b). Second Year May take all leave entitled to 30 days and leave carried over (reg. 38A(2)(c); Must take at least 10 consecutive days vacation leave (reg. 38A(2)(c); Maximum of 30 days carried over to the third year (reg. 38(2)(d); Third Year May take all leave entitled to 30 days and leave carried over (reg. 38A(2)(e); Maximum of 60 days vacation leave if capped leave is not also used (reg. 38(2)(e)).
LAPSE OF VACATION LEAVE Any leave not taken by 31 December of the third calendar year shall lapse (reg. 38A(2)(f)); Compulsory vacation leave (reg. 38F) All vacation leave credit in the vacation leave cycle must be utilised within the leave cycle, but not more than 10 unused leave days may be utilised within the first three months of the following leave cycle.
LEAVE GRATUITY Payable on vacation of office for any reason (reg. 38G (1) and (2)) Unused vacation leave accrued during the last year of service - cash value must be calculated in accordance with regulation 38H and be paid to a magistrate (reg. 38G(1)); Capped leave - cash value calculated in accordance with regulation 38H (reg. 38G(2)); Formula in reg. 38H: Annual salary x leave credits 260.714
VACATION LEAVE WITHOUT REMUNERATION All vacation leave with remuneration to a magistrate s credit must first be exhausted before vacation leave without remuneration may be granted (reg. 38I(1)). Formula in reg. 38I(2) Remuneration x Number of working days 260.714
NORMAL SICK LEAVE PROVISIONING Normal Sick leave with full pay Normal sick leave with half pay Normal sick leave without pay Regulations 38A(4), 5(b) and 38J
NORMAL SICK LEAVE CYCLE Three year sick leave cycle commenced on 1 January 2019 (reg. 38J(1)) Section 12 of the Interpretation Act No. 33 of 1957 12. Effect of repeal of a law. (2) Where a law repeals any other law, then unless the contrary intention appears, the repeal shall not (b) affect the previous operation of any law so repealed or anything duly done or suffered under the law so repealed; The import of section 12(2)(b) of the Interpretation Act is that, despite the repeal of regulation 38 of the Regulations for Judicial Officers in the Lower Courts, 1993, the repeal does not effect their previous operation; anything duly done or suffered under the provisions. Therefore, sick leave captured on PERSAL must remain in place and only the difference must be transferred to Itirele.
NORMAL SICK LEAVE WITH FULL PAY If appointed before 1 January 2019 86 working days sick leave in each tri-annual sick leave cycle (reg. 38A(4)); Accrues at beginning of cycle and may be granted (reg. 38J(2)) If appointed after 1 January 2019 pro rata of 86 working days sick leave in each tri-annual sick leave cycle calculated in accordance with reg. 38A(5)(b). Accrues at beginning of cycle and may be granted (reg. 38J(3)) Additional sick leave: More than 10 years service an additional non-recurrent 86 working days sick leave with remuneration (reg. 38J(14) read with 39(3) which applies with the necessary changes). Any unused portion of the additional working days sick leave is carried forward to the following cycle or cycles (reg. 38J(15))
SICK LEAVE WITH HALF PAY A magistrate, who has been granted the maximum number of working days of sick leave as contemplated in regulation 38A (4) and (5); has utilised vacation leave in lieu of sick leave as contemplated in sub-regulation (6) to (8); and is not yet able to resume his or her normal duties, may apply, in writing, stating the reasons and submitting a medical certificate to the Minister, for further sick leave with half salary (reg. 38J(9)). The Minister may grant further sick leave with half salary, not exceeding 86 working days in the aggregate in any one cycle, which grant may be made in respect of separate periods of absence and any illness if the Minister is satisfied that the magistrate, at that particular time, is not permanently unfit to resume his or her normal duties; and the magistrate has no vacation leave, including capped leave, to his or her credit (reg. 38J(10)). Section 12(6) of the Magistrates Act, No. 90 of 1993: The remuneration of magistrates shall not be reduced except by an Act of Parliament. A magistrate may only be granted leave with half salary remuneration, upon waiving, in writing, his or her right to unreduced remuneration as provided for in section 12(6) of the Act (reg.38(S)).
SICK LEAVE WITHOUT PAY If a magistrate has used his or her remunerated or half salaried sick leave and vacation leave provided for in these Regulations, he or she may, upon application in writing, be granted sick leave without remuneration not exceeding one year in the aggregate in any particular cycle (reg. 38J(11)). A magistrate may only be granted leave without remuneration, upon waiving, in writing, his or her right to unreduced remuneration as provided for in section 12(6) of the Act (reg. 38(S))
VACATION LEAVE IN LIEU OF SICK LEAVE WITH HALF PAY A magistrate may, on application in writing to the Minister, be granted vacation leave which he or she may have to his or her credit, in lieu of sick leave with half salary: Provided that (a) such application is submitted not later than one calendar month after he or she has resumed duty; (b) the number of days vacation leave so granted may not exceed 260 working days in the aggregate in any sick leave cycle; and (c) the Minister is satisfied that the magistrate concerned is not at that stage permanently unfit for the resumption of his or her normal duties (reg. 38J(6)). Sub-regulation (6) may also be applied in respect of a magistrate s absence owing to illness after steps have been taken to remove him or her from office on the grounds of ill health (reg. 38J(7)). Once the vacation leave referred to in sub-regulation (6) or (7) has been granted to a magistrate, and he or she has received remuneration in respect thereof, such leave may not be reconverted into sick leave with half salary (reg. 38J(8)).
FURTHER SICK LEAVE A magistrate may not, other than in terms of this regulation and during a particular sick leave cycle, be granted any further leave to cover his or her absence from duty owing to illness, except on the recommendation of the Commission (reg. 38J(12)).
LAPSE OF SICK LEAVE Unused sick leave in a particular cycle lapses at the end of that cycle (reg.38J(4)).
SPECIAL SICK LEAVE Injury sustained in an accident as a result of duties or disease contracted in the course of and as a result of duties (reg. 38K); 130 consecutive days (reg. 38K(1); Further 130 consecutive days, but the Minister must cause an investigation to be conducted to determine the capacity of the magistrate to resume his or her duties within a further period of not more than 130 consecutive working days (reg. 38K(2)(a); or Incapacity of the magistrate to remove magistrate from office (reg. K(2)(b) read with reg. 27 and 28) The Minister may grant additional special sick leave with remuneration, or half salary, or without any remuneration for a further maximum period of six calendar months if, after an investigation in terms of sub-regulation (2)(a), a magistrate will be able to resume his or her duties within such further period (reg. 38K(3)). may be granted notwithstanding the fact that the accident is attributable to the negligent conduct of the magistrate (reg. 38K(4))
SPECIAL LEAVE WITH REMUNERATION Regulations 38L 38R Pre-natal leave reg. 38M Pregnancy and confinement Reg. 38N Adoption reg. 38O Family responsibility reg. 38p resettlement upon transfer reg. 38q Exceptional special leave reg. 38R
SPECIAL PRE-NATAL LEAVE (REG. 38M) A pregnant magistrate is entitled to eight working days pre-natal leave, per pregnancy, allowing the magistrate to attend medical examinations by a medical practitioner or midwife, and tests related to the pregnancy (reg. 38M); Including any period actually and necessarily utilised in travelling for the purpose for which the leave is granted (reg. 38L(a))
SPECIAL LEAVE: PREGNANCY AND CONFINEMENT (REG. 38N Regardless of marital status (reg. 38N(1)). Four consecutive calendar months (reg. 38N(2)); commencing at any time from four weeks before the expected date of birth, or on a prior date attending practitioner (reg. 38N(2); may not commence with normal official duties for at least four weeks after the birth of her child attending practitioner (reg. 38N(3); Uninterrupted and continuous with confinement (reg. 38N(4); Extended (reg. 38N(7); Annual leave; Unpaid not exceeding 6 calendar months Sick leave as result of medical complication
SPECIAL LEAVE FOR ADOPTION (REG. 38O) A maximum of 45 working days commencing from the date that the adopted child takes up residence with the adoptive parent (reg. 38O(1)); If both adoptive parents are magistrates, 1 parent qualifies for 45 days above and the other one for 5 days family responsibility leave (reg. 38O(2)); May be extended reg. 38O(2)): Annual leave; unpaid leave for a period not longer than six calendar months, if the magistrate does not have enough annual leave available.
SPECIAL LEAVE FOR FAMILY RESPONSIBILITY (REG. 38P) Five working days family responsibility leave (reg. 38P(1)) per annual leave cycle (1 January 31 December) for utilisation if: the magistrate s spouse or registered partner gives birth; the magistrate s spouse or registered partner adopts a child; child, adopted child, spouse or registered partner, is sick. Five working days family responsibility (reg. 38P(2)) leave per year (1 January 31 December) for utilisation if relative dies: Child, adopted child or grandchild; spouse or registered partner; parent, adoptive parent, grandparent or parent-in-law (direct) sibling. Thereafter (reg. 38P(3)) Available annual leave Unpaid leave not longer than 6 months Approval of Minister is required see slide on delegation.
SPECIAL LEAVE FOR RESETTLEMENT (REG. 38Q) Requirement: As a result of a transfer (reg. 38Q); 2 consecutive days for a single prior visit (reg. 38Q(1)); 2 working days for resettlement for magistrate who is transferred (reg. 38Q(2)).
EXCEPTIONAL SPECIAL LEAVE (REG. 38R) Exceptional circumstances (reg. 38 R) leave for which no provision has been made in these Regulations, e.g. Study leave; Sport; Office bearers of JOASA and ARMSA; Further sick leave (reg. 38J(12)). Recommendation from approving authority Deputy Minister if Regional Court President or Chief Magistrate (reg. 38E(3)); Regional Court President (reg. 38 E(4)(a)); Chief Magistrate (reg. 38E(4)(b)). Magistrates Commission (reg. 38J(12))
DISCOUNTING OF LEAVE REG 39 A magistrate may, after 20 years' uninterrupted service in the office of magistrate, discount a maximum of 10 days of his or her available vacation leave (Reg. 38(1)). A magistrate may, after 30 years' uninterrupted service in the office of magistrate, discount 20 days of his or her available vacation leave, or 10% of his or her available vacation leave, whichever is the most (Reg. 38(1)). Formula (reg. 38H) Basic annual salary X Number of leave days 260.714
