The employment status of magistrates in South Africa and the concept of judicial independence

Abstract

Protection in terms of labour law is primarily available only to persons with status as employees. In South Africa the courts have over the years developed different tests to establish who is an employee and therefore entitled to the protection afforded by labour law. These tests have been incorporated into legislation. The Labour Relations Act 66 of 1995 provides for a definition and presumption of who is an employee. The Act also excludes certain categories of persons from its application and ambit. Although magistrates have not expressly been excluded from the application of the Act, it has been held that they are not employees, because such a categorisation would infringe the principle of judicial independence as guaranteed by the Constitution of the Republic of South Africa, 1996. The purpose of this contribution is to evaluate whether magistrates could be categorised as employees in terms of the traditional tests of employment and still be able to maintain judicial independence as required by the South African Constitution.