| (1) |
A magistrate shall, subject to the provisions of subsection (1A), vacate his or her office on attaining the age of 65 years: Provided that if he or she attains the said age after the first day of any month, he or she shall be deemed to attain that age on the first day of the next ensuing month. |
[Section 13(1) substituted by section 24(a) of Act No. 8 of 2017 - effective 31 January 2020 as per Proclamation No. R. 5, GG42987, dated 31 January 2020]
| (a) |
A magistrate holding office as such may, before attaining the age of 65 years, in written notice to the Commission, indicate his or her intention to continue to serve in such office for such further period specified in the written notice: Provided that a magistrate must vacate his or her office on attaining the age of 70 years: Provided further that if he or she attains the said age after the first day of any month, he or she shall be deemed to attain that age on the first day of the next ensuing month. |
| (b) |
A magistrate who intends to continue to serve in such office as contemplated in paragraph (a) must timeously give notice thereof in writing to the Commission before he or she attains the age of 65 years |
[Section 13(1A) inserted by section 24(b) of Act No. 8 of 2017 - effective 31 January 2020 as per Proclamation No. R. 5, GG42987, dated 31 January 2020]
| (2) |
A magistrate shall not be suspended or removed from office except in accordance with the provisions of subsections (1), (3), (4) and (5). |
(3)
| (a) |
The Minister, on the advice of the Commission, may provisionally suspend a magistrate from office if— |
| (i) |
the Commission, after affording the magistrate a reasonable opportunity to be heard regarding the desirability of such provisional suspension, is satisfied that reliable evidence exists indicating that an allegation against that magistrate is of such a serious nature as to make it inappropriate for the magistrate to perform the functions of a magistrate while the allegation is being investigated; and |
| (ii) |
an investigation has been instituted by the Commission into such magistrate's fitness to hold office. |
| (b) |
A report in which the provisional suspension in terms of paragraph (a) of a magistrate and the reasons therefor are made known, must be tabled in Parliament by the Minister within seven days of such suspension, if Parliament is then in session, or, if Parliament is not then in session, within seven days after the commencement of its next ensuing session. |
| (c) |
Parliament must, as soon as is reasonably possible, pass a resolution as to whether or not the provisional suspension of the magistrate is confirmed. |
| (d) |
If Parliament passes a resolution as contemplated in paragraph (c) that the provisional suspension is not confirmed, the suspension lapses. |
| (e) |
The provisional suspension of a magistrate in terms of paragraph (a) lapses after 60 days from the date of the suspension, unless the Commission, within that period, commences its inquiry into the allegation in question by causing a written notice containing the allegation concerned to be served on the magistrate. |
| (f) |
An inquiry referred to in paragraph (e) must be concluded as soon as possible, and the Commission must cause a report on the progress in respect of that inquiry to be submitted to Parliament every three months. |
| (g) |
Parliament may, at any stage pending— |
| (i) |
the conclusion of an inquiry referred to in paragraph (e); or |
| (ii) |
a resolution referred to in subsection (4) (c), |
pass a resolution setting aside the suspension of the magistrate concerned, whereupon the suspension shall lapse forthwith.
[Section 13(3) substituted by section 4 of Act No. No. 28 of 2003]
| (a) |
If the Commission recommends that a magistrate be removed from office— |
| (i) |
on the ground of misconduct; |
| (ii) |
on account of continued ill-health; or |
| (iii) |
on account of incapacity to carry out the duties of his or her office efficiently, |
the Minister must suspend that magistrate from office or, if the magistrate is at that stage provisionally suspended in terms of subsection (1) (a) , confirm the suspension.
| (b) |
A report in which the suspension in terms of paragraph (a) of a magistrate and the reason therefor are made known, must be tabled in Parliament by the Minister within 14 days of such suspension, if Parliament is then in session, or, if Parliament is not then in session, within 14 days after the commencement of its next ensuing session. |
| (c) |
Parliament must, as soon as is reasonably possible, pass a resolution as to whether or not the restoration to his or her office of a magistrate so suspended is recommended. |
| (d) |
After a resolution has been passed by Parliament as contemplated in paragraph (c) , the Minister shall restore the magistrate concerned to his or her office or remove him or her from office, as the case may be. |
[Section 13(4) substituted by section 4 of Act No. 28 of 2003]
| (a) |
The remuneration of a magistrate is not affected during a period of suspension in terms of subsection (3) (a) or (4) (a) , unless the Commission determines otherwise. |
| (b) |
If the Commission determines that the remuneration of a magistrate shall be reduced or withheld in terms of paragraph (a) , a report regarding that determination and the reason therefor must be tabled in Parliament by the Minister within seven days of such determination, if Parliament is then in session, or, if Parliament is not then in session, within seven days after the commencement of its next ensuing session. |
| (c) |
Parliament must, as soon as is reasonably possible, consider that report and pass a resolution as to whether or not the determination concerned is confirmed, either with or without amendment, or set aside. |
| (d) |
If Parliament passes a resolution as contemplated in paragraph (c) that the determination is set aside, that determination shall lapse with effect from the date when the determination was first made. |
[Section 13(4A) inserted by section 4 of Act No. 28 of 2003]
| (a) |
The Minister may, at the request of a magistrate, allow such magistrate to vacate his or her office— |
| (i) |
on account of continued ill-health; |
| (iA) |
in order to effect a transfer and appointment as contemplated in section 15 (1) of the Public Service Act, 1994 (Proclamation R103 of 1994); or |
[Section 13(5)(a)(iA) inserted by section 4(b) of Act No. 85 of 1995]
| (ii) |
for any other reason which the Minister deems sufficient. |
| (b) |
Any request of a magistrate contemplated in paragraph (a) (ii) shall be addressed to the Minister so that he or she receives it at least six calendar months before the date on which the magistrate wishes so to vacate his or her office, unless the Minister approves a shorter period in a specific case. |
[Section 13(5)(b) substituted by section 8(c) of Act No. 35 of 1996]
| (i) |
is allowed to vacate his or her office in terms of paragraph (a)(i), he or she shall be entitled to such pension benefits as he or she would have been entitled to under the pensions Act applicable to him or her if his services had been terminated on the ground of continued ill-health occasioned without his or her being instrumental thereto; or |
[Section 13(5)(c)(i) substituted by section 8(c) and (e) of Act No. 35 of 1996]
| (ii) |
is allowed to vacate his or her office in terms of paragraph (a) (ii), he or she shall be deemed— |
| (aa) |
to have been removed from office to promote efficiency for reasons other than his or her own unfitness or incapacity; or |
| (bb) |
to have been retired in accordance with section 16 (4) of the Public Service Act, 1994 ( Proclamation 103 of 1994 ), |
[Section 13(5)(c)(ii)(bb) substituted by section 4 of Act No. 18 of 1996]
as the Minister may direct, and he or she shall be entitled to such pension benefits as he or she would have been entitled to under the pensions Act applicable to him or her if he or she had been so removed from office or had been so retired, according to the direction of the Minister.
[Section 13(5) substituted by section 8(c), (e) and (g) of Act No. 35 of 1996]
| (5A) |
When a magistrate is appointed to the office of a judge he or she shall be entitled to— |
| (a) |
the payment of his or her actuarial interest, as defined in the rules issued in terms of the Government Employees Pension Law, 1996 (Proclamation No. 21 of 1996), in the Government Employees Pension Fund as on the date of appointment as a judge; and |
| (b) |
the payment of all accumulated leave as on the date of appointment as a judge. |
[Section 13(5A) inserted by section 4 of Act No. 24 of 2015, GG 39587, dated 8 January 2016]
(5B)
| (a) |
A magistrate referred to subsection (5A) may— |
| (i) |
request the Government Employees Pension Fund to transfer the full actuarial interest from the said Fund to a designated preservation fund where the monies remain until the former magistrate attains the age of 55 years, whereafter he or she can buy a monthly pension or take out an annuity with the further option to withdraw one third of the accrued amount in cash; or |
| (ii) |
request the Government Employees Pension Fund to pay the full actuarial interest to him or her and not to transfer the monies to a preservation fund as contemplated in subparagraph (i). |
| (b) |
For purposes of this subsection "preservation fund" means a pension preservation fund or a provident preservation fund, as defined in section 1 of the Income Tax Act, 1962 (Act No. 58 of 1962). |
[Section 13(5B) inserted by section 4 of Act No. 24 of 2015, GG 39587, dated 8 January 2016]
| (6) |
For the purpose of a transfer and appointment contemplated in section 15 (1) of the Public Service Act, 1994, a magistrate shall be deemed to be holding an appointment in an institution as contemplated in that section. |
[Section 13(6) inserted by section 4(c) of Act No. 85 of 1995]
| (7) |
The period of service as a magistrate of a magistrate transferred and appointed under section 15 (1) of the Public Service Act, 1994, shall be reckoned as part of and continuous with his or her service in the public service for the purposes of leave, pension and any other condition of service. |
[Section 13(7) inserted by section 4(c) of Act No. 85 of 1995]
[Date of commencement of section 13: 11 March 1994]
Older Persons Act, 2006
