The Public Protector cannot realise the constitutional purpose of her office if other organs of State may second-guess her findings and ignore her recommendations. Section 182(1)(c) must accordingly be taken to mean what it says. The Public Protector may take remedial action herself. She may determine the remedy and direct its implementation. It follows that the language, history and purpose of s 182(1)(c) make it clear that the Constitution intends for the Public Protector to have the power to provide an effective remedy and direct its implementation.
Should the commission’s salary adjustments be adopted, it would see Chief Justice Pius Langa’s salary increase from R103 4302 to R1.7-million — a 65 percent raise.
The current gap between Judge Langa’s salary and that of ordinary judges is R82 000. The gap will go up to almost R600 000, if the salary increases go through.
Other top judges set to benefit are Judge Craig Howie of the Supreme Court of Appeal, South Africa’s nine Constitutional Court judges and 19 appeal judges, who could get an increase of 40 percent. More than double what their “poorly” paid junior colleagues might receive.
A 17% pay increase looks rather large compared to the 7.25% the government is offering the striking civil servants. Earning a million Rand a year seems like a relatively handy salary – especially if one takes into account that at retirement judges receive their full salary for life.
It is true, however, that the top black lawyers can earn much more in private practice, but few of the top black lawyers have actually decided to become judges. If all judges would get a 65% increase, we would be overpaying most of them, I would imagine.
And what about the idea that such a big gap between the salaries of judges would make judges ambitious and could sway them to make decisions that would be good for their careers? This seems a tricky issue. On the one hand one would imagine that it would exactly be those judges who make the best decisions who would be able to look forward to promotion.
On the other hand the nature of the Judicial Services Commission process, might leave room for conjecture that judges less willing to take on the government of the day would be more likely to be promoted. The monetary incentives to get to the Constitutional Court could then be said to put pressure on the judiciary to become more compliant.
I suspect this argument is not going to hold water in the long run. The really good judges will always shine and as long as the JSC system is not completely perverted, none of the judges that will be promoted will be promoted merely because they were compliant – they would have to demonstrate expertise and some brilliance.
Maybe I have a touchingly naive notion of the judiciary, but I cannot imagine that many judges (maybe Judge President Hlophe excluded!) would even think of making judicial decisions in such a Machiavellian manner. Only time will tell.