Report-back by Magistrate's Commission; Suspension from office of Magistrates; briefing on the Protocol of Amendments to the International Hydrographic Organisation (IHO) Convention

Meeting report

Report-back by the Magistrate’s Commission
The Magistrate’s Commission was represented by Magistrates J Meijer and AP Louw. The first part of the Commission’s briefing was a follow up of the reports tabled in August 2009 on Magistrate Oliphant and Magistrate Bacharam.

Mr Meijer sketched the background of the matter concerning Magistrate Oliphant. Magistrate Oliphant increasingly failed to report for work and eventually ceased to report for work at all. When questioned about her absenteeism, she informed the Commission that her absenteeism was due to the fact that she was receiving psychiatric help. However, when asked to substantiate her claim she could not provide proof in support of her claim.  She appeared to be fine but continued to be absent from work.  When asked why she was unable to report for work, she did not respond. As agreed with the Committee in August, the Commission drafted a letter containing Parliament’s consideration to remove her from office and delivered the letter to Magistrate Oliphant personally at her residence at 12:30 on 27 August 2009. To date, no response was received from Magistrate Oliphant to the letter, nor has she reported for duty. The Commission was therefore of the view that Magistrate Oliphant had absconded from duty and should be removed from office.

With regard to Magistrate Bacharam, the Commission was pleased to report that her suspension was lifted on 15 September 2009.  She resumed her duties on 5 October 2009.

Discussion
The Chairperson asked if Magistrate Oliphant’s failure to report for duty could be due to illness.

Mr Meijer replied that she appeared to be fine and did not provide any reasons for her absence from work. When asked what she was going to do about it and her response was she did not know what she was going to do. However, she had not been remunerated since March 2009.

Mr M Makhubela (Limpopo, COPE) remarked that if there was evidence that the letter demanding her return to duty was served to her personally and that she had failed to respond by a certain date, it was tantamount to her own dismal.

Mr A Matila (Gauteng, ANC) remarked that it had been agreed at the previous meeting that a failure to respond to the letter would be considered to be absconding. He felt that there was no need to debate the issue further as the matter had already been resolved.

Briefing by the Magistrate’s Commission on the suspension from office of Magistrates
The Magistrate’s Commission requested the Committee to consider the suspension from office of Magistrates Ms N E Ndamase and Mr C M Dumani.

Mr Meijer advised that Ms Ndamase had been provisionally suspended and the Commission awaited the Minister’s approval of the suspension. Ms Ndamase was an additional magistrate to the Pretoria District Court. She was appointed to the post on 1 July 1999. Mr D Nair (Chief Magistrate, Pretoria) had filed complaints with the ethics committee of the Commission.  Allegations of insubordination and indolent/negligent execution of duties were made.

Mr Dumani was appointed as Acting Magistrate on 1 November 2008 and was subject to a probationary period of twelve months. An investigation carried out by the Commission confirmed that four different female employees had laid complaints against Mr Dumani on different occasions between December 2008 and January 2009. The alleged incidents of misconduct were the stroking of the cheek of a cleaner and a security officer with the back of his hand, tickling the back of the neck of a cleaner and laying his hand between the breasts of the clerk of the court. As a result, the relationship between the complainants and Mr Dumani had broken down to such an extent that working with him had become stressful.

Discussion
Mr M Makhubela (COPE, Limpopo) asked why the matter concerning Mr Dumani had not been dealt with earlier.  He asked if the allegations against Ms Ndamase had been investigated and what the relationship was between Ms Ndamase and Mr Nair and with her other co-workers.

Mr A Matila (ANC, Gauteng) remarked that the complaint laid against Ms Ndamase could have resulted from a breakdown in the relationship between rs Ndamase and Mr Nair. He suggested that the matter was investigated further before any action was taken and that the investigation should be extended to Ms Ndamase’s colleagues to ensure that the matter was not one-sided.  He said that this kind of problem could be an indication of other, deeper problems afflicting the institution as opposed to the conduct of an individual.  The investigation could illuminate if that was the case. He felt that it was premature for the Committee to make a decision on the matter before it had been properly investigated.

Mr Meijer replied that there was a substantial amount of correspondence attached to Mr Nair’s affidavit on file, including correspondence between the head office and Mr Nair and correspondence with Ms Ndamase. In addition, the file included correspondence from Ms Myambo, Ms Rademan and Ms Mamosebo concerning the matter.  The Commission recommended a charge of misconduct on the basis of the written evidence. He agreed that there was clearly a relationship problem as Ms Ndamase had also filed a grievance with the Commission after the complaint against her had been filed with the Commission. The Commission resolved not to proceed with the grievance as the misconduct charge was pending.

The Chairperson asked if the Commission had interacted with Ms Ndamase in an attempt to establish the root cause.

Mr Meijer replied that, to date, the Commission had not interacted with Ms Ndamase.  However, she had requested all the information provided to the ethics committee had been furnished with copies. She had been called to respond and show cause as to why the Commission should not suspend her from office.  Her response was that the Commission was biased, had already made the decision to charge her with misconduct and should recuse itself. The Commission was of the view that they could not recuse themselves as that would mean that there would be no one else who could deal with the matter.

Mr Matila reiterated that the focus on the individuals concerned should not ignore the possibility that there were other problems in the institution.  It was clear from the evidence that there were a number of grievances and matters that had to be dealt with.  Problems in the institution could not be solved by charging individuals. He suggested that the Committee reserved any recommendations until a full investigation had been conducted.

The Members of the Committee agreed with Mr Matila’s suggestion and agreed that Mr Matila travelled to Pretoria on 12 October 2009 in order to gain insight and clarity on the matter. The Committee would be in Gauteng on the 22 and 23 October 2009 and would be able to meet in Pretoria. The Committee suggested a meeting with the Commission after the meeting to discuss the outcome of their investigations.

Mr Matila asked the Commission to arrange meetings between himself, Mr Nair and Ms Ndamase.

Mr Meijer agreed to arrange the meetings.

Mr MW Makhubela COPE, Limpopo) asked for confirmation that the complaints laid against Mr Dumani constituted sexual harassment.

Mr Louw replied that the charge was that the code of conduct had not being complied with.

Mr Makhubela felt that the nature of the allegations indicated that it was a matter of sexual harassment.  He said that the problem with this type of allegations was that third parties were unaware of the intimate details. Close personal relationships could deteriorate and aggrieved persons could lay complaints against the other party. According to him, the relationship between the parties prior to the lodging of the complaints needed to be investigated.

Mr Louw replied that Mr Dumani had been newly appointed and had had no previous contact with the complainants. The first incident occurred when Mr Dumani was introduced to the complainant by another magistrate.  He started to stroke the cheek of the lady despite her vehement objections when the other magistrate left the office. He said that the Commission was requesting a provisional suspension because the relationship between the complainants and the Magistrate was severely strained.

Mr Meijer added that it was important that the Commission established the credibility of complainants in cases where relationships in the workplace were compromised.

Mr Matila suggested that the provisional suspension was granted.  The Committee agreed to his suggestion.

The Chairperson asked when a provisional suspension became active.

Mr Louw replied that according to Section13 (3) (a), the Minister may provisionally suspend a magistrate from office on the advice of the Magistrate’s Commission. The suspension took effect when the letter of suspension was approved by Parliament.   If Parliament did not approve the letter of suspension, the holder of the office was reinstated.

Briefing by the Department of Defence and Military Veterans on the Protocol of Amendments to the International Hydrographic Organisation (IHO) Convention
The delegation from the Department of Defence and Military Veterans (DODMV) included Ms M Kubushi, Deputy Director-General: Defence Legal Services, Rear Admiral RW Higgs, Flag Officer: Fleet, South African Navy, Mr S McDuluy, Acting Director: Defence International Affairs, Ms S Alberts, Assistant Director: Defence International Affairs and Captain A Kampfer, Hydrographer, South African Navy.

Mr McDuluy advised that the aim of the briefing was to inform Members of the Committee of the modalities of the Protocol of Amendments to the IHO Convention and to recommend to Members to support the unreserved approval of the entire Protocol of Amendments in the National Assembly and National Council of Provinces.

The IHO was an inter-governmental consultative and technical organisation established in 1921.  The IHO supported safety in navigation and protected the maritime environment.  South Africa became a member of the IHO in 1967 and the IHO Convention was ratified by Parliament in 1968.  The current membership of the IHO was 80 countries.

On 14 April 2005, a resolution was adopted at the IHO Conference to amend the Preamble and 19 Articles of the IHO Convention.  The objective of the amendments was to improve the scope, objectives, capacity and effect of the IHO Convention.

Captain Kampfer presented an overview of the IHO, a synopsis of the importance of hydrography in respect of safety of lives at sea, a report on the status of hydrography in Africa and a summary of the IHO Convention and the proposed amendments (see attached document).

Rear Admiral Higgs commented on the importance of membership of the IHO. At the fleet level, hydrography allowed for the effective use the sea.  55% of the gross domestic product (GDP) of the nation was based on maritime trade, with an estimated 90% to 95% of imports and exports being ferried by sea. The Navy’s hydrographic vessel, with approximately 100 South Africans on board, was currently en route to Durban, where it would spend a month involved in surveying activities.

In conclusion, Mr McDuluy summarised the regulatory process that had been followed to date.

Discussion
The Chairperson regretted that many Members of the Committee were unable to attend the briefing.  He found the subject extremely interesting and wished to request that the briefing was re-presented at a time when more Members would be able to attend.  He suggested that the Committee visited the offices of the Department to become better acquainted with their activities.

The Chairperson noted that one of the objectives of hydrography was the prediction of changes in the sea.  He wanted to know more about this aspect and if hydrographers had been able to provide advice on potential maritime disasters in the past.

Captain Kampfer replied that the South African Navy belonged to a global observation network and had a series of tidal gauges along the coastline, which were monitored 24 hours per day from his office. The tides were monitored and tide tables were produced, which was used, for example, by fishermen.  The network generated a warning if there was an earthquake, which could cause a tsunami.  The navigational warning network came into play and a coastal warning would be issued because a tsunami normally had little effect on a ship at sea. Tsunami warnings were more significant for ships at harbour and for coastal areas.

The Chairperson asked if the impact of disasters could be predicted (for example, in cases like the recent disasters in Samoa and the Philippines).  He asked if measures could be taken to prevent disasters if their impact could be determined.

Captain Kampfer explained that the extensive current and archived data and hydrographical information available made it possible to create models of the expected effect of a tsunami.  The models could be used for proper coastal planning, which would limit the damage caused by tsunamis. However, a tsunami could not be prevented as it was a natural phenomenon. It was now possible to make use of the data to plan ahead and to minimise the effect of such disasters.  The tsunami in December 2006 had registered on the Navy’s tidal gauges and was monitored in South Africa.

Mr Makhubela asked if programmes were in place to encourage capacity building in other African countries.  He asked what was done by the Navy to encourage non-member states to join the IHO.

Captain Kampfer replied that one of the reasons for the establishment of the regional commission by the IHO was to persuade non-member countries to join the IHO.  The regional commission was tasked with the education of non-members on the importance of hydrography, the gathering of information and determining the shortcomings in member states so that assistance could be provided if required. The capacity-building effort was aimed at the non-member states and funding for capacity building was made available by the IHO. He advised that a meeting was recently held in Reunion, which was well-attended by representatives from all the countries in the region. A seminar was attended by the heads of the delegations.

Mr Makhubela asked why African states were not well represented in the IHO.

Captain Kampfer replied that a number of African countries were unaware of the importance and potential of the sea.  The establishment of a hydrographic division was expensive but the benefits were high. The South African hydrographic division had a lot of experience and had gathered a substantial quantity of historical data.  Namibia had a pragmatic agreement with South Africa, whereby the South African Navy provided hydrographic services to Namibia.  The IHO encouraged agreements between one country with no capacity and a neighbouring country with capacity.

Mr Makhubela asked what the requirements were for membership of the IHO.

Mr Kempfer replied that the submission of an application was a relatively simple process. The processing of pending applications was however one of the challenging areas the IHO was attempting to address.  The problem was caused by the requirement that all the member states had to approve the acceptance of a new member.  A similar problem was the ruling that a two-thirds majority was required to ratify an amendment. He explained that member countries welcomed new members as the IHO benefited financially but the decision-making process was extremely tedious.  The proposed amendments to the structure of the IHO were intended to accelerate decision-making in the organisation.

Mr Makhubela requested clarity on the position of the Democratic Republic of Congo (DRC), indicated as ‘suspended’ in the presentation.  He asked what was meant by countries indicated as ‘pending’.

Mr Kempfer replied that the DRC was suspended due to the non-payment of the membership fee.  Members were well aware of the internal situation in the DRC and the fact that there was no real Government in place.  Countries indicated as ‘pending’, had submitted applications for membership and were waiting for the required approval by all the other member countries.

Mr Makhubela applauded the appointment of a South African to the position of Chairperson of an IHO committee.  He suggested that the Minister of International Relations were involved in the process and that South Africa hosted more of the IHO’s meetings in order to increase the country’s standing and visibility.

Mr Kempfer replied that the South African hydrographic service had played host to a number of meetings.  He informed the Committee that South Africa was hosting a meeting of the Hydrographic Commission on Antarctica in Simonstown on 12 October 2009.  South Africa was a member of the Hydrographic Commission on Antarctica and had a research station there.  South Africa attempted to host at least one meeting a year.  Many delegates who had attended hydrographical meetings in South Africa subsequently returned as tourists.

Mr Makhubela asked what medium of instruction was used for training in Mozambique.

The Chairperson asked how many South Africans were undergoing training.  He was interested in the number of black, female and persons with disabilities in the service.

Captain Kampfer replied that a training and succession programme was in place.  Hydrographer surveyors were extremely scarce resources and were much in demand, particularly in the oil industry.  A number of South Africans were employed abroad and it was a Herculean effort to retain skills in the country.  He confirmed that all race groups and women were represented in the service.  Much of the work done was at sea and limited the opportunities for persons with disabilities.  Hydrographic services personnel were commodore officers and were required to pass stringent examinations at sea and to be declared medically fit.  One of the instructors had lost his sight in one eye and had been declared medically unfit to serve at sea.  In his new position of instructor, he was able to impart his considerable knowledge and experience and made a valuable contribution to the service.  The training of a hydrographic surveyor took a number of years and the loss of a single person was detrimental to the service.  In order to minimise the impact of the loss of valuable skills, a succession plan was developed.  The retention of trained personnel remained a challenge for the service.

The meeting was adjourned.