The status of magistrates as employees in South Africa

Abstract

Magistrates in South Africa play a very important role in the administration of justice. They carry out both judicial and administrative duties to ensure that law and order are maintained. Because of the vital judicial role that magistrates play it is imperative that there should be certainty regarding the appropriate remedies that are available to them should their constitutional right to fair labour practices be infringed in the performance of their duties. In this regard section 23 of the Constitution of the Republic of South Africa, 1996 affords everyone the right to fair labour practices. This right has been given effect to by the enactment of the Labour Relations Act 66 of 1995 (LRA), which affords the right to fair labour practices to employees only. Even though magistrates are not specifically excluded from the scope and ambit of the LRA, uncertainty still prevails in South African law regarding their entitlement to the remedies provided for by labour law. It has been suggested that magistrates cannot be employees in view of the fact that the Constitution requires the judiciary to be independent. This dissertation aims to establish whether magistrates could be categorised as employees in terms of the traditional tests used to establish employment. It furthermore seeks to establish whether the constitutional guarantee of an independent judiciary and the existence of an employment relationship are mutually exclusive.