State Liability Amendment Bill [B2B-2011]: deliberations; Progress Reports on Provisional Suspension from Office of Magistrate: briefing by the Magistrates Commission

Meeting report

Deliberations on the State Liability Amendment Bill [B2B-2011
The Chairperson advised that the Committee had requested the Department of Justice and Constitutional Development (DOJ&CD) to tighten the provisions concerning the accountability of the responsible executive authority.

Adv Johan Labuschagne, Principal State Law Adviser, DOJ&CD referred to the documents that were distributed to the Committee during the previous week (see attached documents).  Additional amendments had been proposed and informal discussions had been held with the National Treasury.  He suggested that the representatives of the National Treasury were present when the proposed amendments were discussed.  The Committee was concerned over the effective implementation of the Bill.  The Department had not had sufficient time to consult with the affected Departments and provincial authorities and to consider the potential unintended consequences of the Bill.  He suggested that the Committee included a request in the Committee Report on the Bill that the Department thoroughly investigate the impact of the Bill on the affected parties and to submit a report to the Committee within a short period of time.  In addition, the Committee had requested the Department to consider further amendments to the Bill.

Mr A Matila (ANC, Gauteng) suggested that timeframes for the Department to report back to the Committee were included if the Committee agreed to the suggestions.

Mr J Gunda, ID, Northern Cape) pointed out that Parliament would be in recess after the following week.  He asked if the Committee required the input of the National Treasury before the suggestions were agreed to.

Mr M Mokgobi (ANC, Limpopo) said that the Portfolio Committee on Justice and Constitutional Development had raised a number of issues as well.  He suggested that a joint meeting was held with the Portfolio Committee to discuss the outstanding matters.

Mr B Nesi (ANC, Eastern Cape) said that the Bill had to be finalised by 31 August 2011.  Any additional matters had to be dealt with before the deadline.

Mr L Nzimande (ANC, KwaZulu Natal) requested clarity on the suggestions concerning the Committee Report on the Bill and the process that would be followed in finalising the Bill.  He said that the input of the National Treasury was necessary.

Mr D Bloem (COPE, Free State) said that it would be problematic if the process of the Bill was delayed in the National Council of Provinces (NCOP).

Mr Gunda pointed out that it had been agreed that the Bill would come before the Committee during the following Parliamentary term.

Mr Nzimande said that the Programming Committee had been informed that the Select Committee had not proposed any major amendments to the Bill and did not foresee any delay in processing the Bill.  The suggestions made by the Department concerned the critical processes that had to be followed rather than additional amendments to the Bill, which would necessitate the Bill being referred back to the National Assembly.

Mr Matila understood that the implementation of the Bill was the key issue.  He proposed that the Committee endorsed the Bill without further amendment but that the Department was required to report on how the Bill would be implemented before the end of August 2011.

Mr Mokgobi had a similar understanding of the earlier discussions on the Bill.

Adv Neville Gawula, Chief Director, DOJ&CD said that the Department understood that the Bill should not be delayed.  The Department had drafted two additional sub-clauses to Clause 3 of the Bill in response to the Committee’s concerns over the effective implementation of the Bill and the consequences of the failure of accounting officers to comply.  The Committee was requested to consider these additional amendments.  Secondly, the Department had commenced drafting an implementation plan once the Bill was enacted on 31 August 2011.  The implementation plan included informing the Director-Generals (as the accounting officers) of all Government Departments of the legislation and the measures that would be taken to ensure compliance.

Mr Matila pointed out that further amendments would necessitate the Bill to be referred back to the National Assembly.  As a result, the Bill would be delayed and the deadline of 31 August 2011 would not be met.  He proposed that the Committee endorsed the Bill, without further amendments.

Mr Bloem remarked that the amendments were made in response to the Committee’s request.  He suggested that the Department presented the additional amendments to the Committee.

Adv Labuschagne said that the Department appreciated the concern of the Committee over the implementation of the Bill.  He agreed that the Bill should not be delayed, hence the suggestion that the Committee included the request for the Department to present an effective implementation plan in the Committee Report on the Bill.  The Department had not had sufficient time to consider all the potential implications of the Bill.  It was possible that the Departments could propose further amendments during the consultation process.  For example, the Bill made provision for a Minister to lay charges against the Director-General of the relevant Department.  It may be preferable if the charges were laid by the National Treasury.  The Bill made provision for the Minister of Justice and Constitutional Development to report to Parliament on outstanding cases that were not resolved within the timeframe specified in the Bill but it might be preferable for the Minister to report on all outstanding cases.  Another issue was whether Parliament should be granted additional powers to act to ensure compliance.  He suggested that the Committee allowed the Department sufficient time (for example a period of six months) to consider the implications and to devise concrete proposals.  Additional amendments might not be required as there could be alternative ways to ensure effective implementation.  He agreed that the Bill would have to be referred back to the National Assembly if the Committee accepted the additional amendments to Clause 3 and that the finalisation of the Bill would be delayed. 

Adv Labuschagne took the Committee through the proposal to add sub-clauses (17) and (18) to Clause 3 (see attached document).  The additional provisions allowed for the executive authority of the Department concerned to ensure that criminal proceedings were instituted against the accounting officer concerned and for biannual reports to be submitted to Parliament.

Mr Freeman Nomvalo, Accountant General, National Treasury explained that Chapter 10 of the Public Finance Management Act (PFMA) and Chapter 4 (2) (2) of the Treasury Regulations already made provision for Ministers to act in the event that Departments failed to implement legislation.  In the case of provincial entities, the responsibility rested with the Premier of the province concerned.  The line of accountability was therefore clear in existing legislation.  In addition, the relevant Parliamentary Committee had the authority to instruct a Minister to take action.  He suggested that the Bill was not amended further as there were existing mechanisms in place to ensure that the legislation was implemented.  If necessary, the Bill could be amended at a later stage.

Mr Matila observed that the Select Committee on Public Accounts (SCOPA) had found that authorities and entities often failed to implement the PFMA and the Municipal Finance Management Act (MFMA).  The Committee was particularly concerned that the Bill was effectively implemented.  He suggested that the Bill was approved by the Committee and that the Department was requested to submit an enforcement plan.

Mr Bloem said that the proposed sub-clause (18) (b) made provision for the Minister to submit biannual reports to Parliament, which would make adequate provision for Parliamentary oversight.  He proposed that the Committee adopted the Bill, with the amendments.

The Chairperson observed that the Members of the Committee were satisfied with the additional amendments.

Mr Matila suggested that the proposed amendments were dealt with in regulations in order to avoid delaying the Bill.

Mr Mokgobi said that it must be clear that an implementation plan was required if the Bill was adopted without the proposed additional amendments.  There was currently no national legislation in place that applied to all three spheres of Government.

Mr Bloem felt that the suggestion to allow the Department adequate time to develop an implementation plan should be accepted by the Committee.

The Chairperson said that the Committee agreed to approve the Bill, without amendment.  The outstanding issues would be dealt with after the end of August 2011.

Mr Bloem asked if the proposed amendments would be dealt with in regulations or in a subsequent Amendment Bill.

Mr Matila said that the Bill had already been approved in the National Assembly.  He was concerned that additional changes would result in the Bill being subjected to mediation.

Mr Gurshwyn Dixon, Committee Secretary explained that the Bill would not be subjected to a mediation process.

Adv Gawula said that the views of the Committee were understood by the Department.  More experience would be gained after the Bill was enacted.  Clause 3 (14) (a) made provision for the National Treasury to make rules and issue guidelines that would ensure compliance.  An Amendment Bill with further changes to the legislation could be introduced at a later stage.

Mr Gunda agreed that further changes to the Act could be made in future.  He suggested that the Committee held a joint meeting with the Portfolio Committee to discuss implementation after 31 August 2011.

Mr Matila agreed and suggested that the National Treasury prepared regulations in the interim.

Mr Bloem felt that it was preferable that Parliament passed good legislation and that pressure of time was not used as an excuse for passing indifferent laws.

The Chairperson thanked the delegates from the DOJ&CD and National Treasury for their input.  He read the Committee Report on the State Liability Amendment Bill (see attached document).  The Committee agreed to the Bill, without amendments.  The Bill would be read in the NCOP on Tuesday, 28 June 2011.

Briefing by the Magistrates Commission on progress reports on the provisional suspension from office of Magistrates
The representatives from the Magistrates Commission explained that the progress reports were submitted to Parliament on a quarterly basis in accordance with Section 13 (3) (f) of the Magistrates Act. The reports dated 24 February 2011 had been submitted to Parliament by the Minister on 17 March 2011. The report for the second quarter of 2011 was due to be submitted to Parliament in the near future.  The meeting was the first opportunity for the Commission to brief the Committee.  Because of the lapse of time, the briefing included an update on the subsequent developments in each case.

Progress Report dated 24 February 2011 to Parliament: Provisional suspension from office - Regional Magistrate TR Rambau, Limpopo Province
Mr Hans Meijer, Member of the Magistrates Commission, advised that Mr Rambau was arrested for corruption on 5 February 2010 and appeared in the Musina District Court on 8 February 2010.  The criminal case was partially heard in October 2010 and further hearings were held in March, April and May 2011.  The case was remanded to 29 August 2011 and additional court dates were set for September and October.

Written notice of the charge of misconduct was served on Mr Rambau on 17 November 2010.  At the misconduct enquiry on 9 February 2011, Mr Rambau requested a postponement until the criminal charges against him were finalised.  The Presiding Officer agreed to postpone the misconduct enquiry to 8 April 2011.  An additional charge of conspiracy to murder was laid and the case was remanded to 5 September 2011.  It was alleged that Mr Rambau had requested a sangoma to eliminate the State witnesses against him in the corruption case.  The names of 10 State witnesses were placed on a hit-list.  Mr Rambau had appointed Council to represent him on the misconduct enquiry and Council appeared before Presiding Officer on 25 June 2011.  The Presiding officer agreed to postpone the misconduct proceedings to 12 September 2011, pending the outcome of the criminal cases.  Mr Rambau would be charged in accordance with the Regulations if he was found guilty.  The case against Mr Rambau was complex and required the testimony of the same witnesses as were involved in the criminal case.  The Magistrates Commission had decided to await the judgment in the criminal cases before proceeding with the misconduct case.

Discussion
Mr A Watson (DA, Mpumalanga) pointed out that Mr Rambau had been suspended on full pay.  He did not understand why he was not dismissed with immediate effect.  He asked what the chances were of the misconduct case succeeding if Mr Rambau was found to be not guilty of the criminal charges.

Mr Meijer replied that Mr Rambau had been requested to show cause why his remuneration should not be withheld.  The practice of the Commission was not to withhold remuneration before a person was convicted on a criminal charge.  The Commission was confident that the charge of misconduct would be proven.  A Magistrate could only be removed from office once a resolution was passed by Parliament.

Mr Nzimande said that the misconduct procedures of the Magistrates Commission were separate from the criminal proceedings.  Mr Rambau would continue to receive his full salary and could delay his removal from office by a lengthy appeal process.  He asked when the matter would be finalised.

Mr Matila agreed that an appeal process could take a number of years.  In the meantime, Mr Rambau continued to receive his salary at the tax payers’ expense.  Additional costs were incurred to pay the salary of another Magistrate to carry out the duties of Mr Rambau.

Mr Watson suggested that the Committee recommended that the Commission proceeded with the disciplinary proceedings without awaiting the outcome of the criminal cases and that Mr Rambau was removed from office without further delay.

Mr Bloem asked if the applicable legislation allowed for suspension without pay.

Mr Meijer replied that the stance of the Magistrates Commission had been to await the outcome of a criminal trial before proceeding with the misconduct matter.  The new Chairperson of the Commission had a different point of view.  The problem was that the witnesses in the disciplinary matter were the same persons appearing in the criminal case and the concern was that the criminal matter could be compromised.

Mr Nzimande remarked that the Committee did not agree with the Commission’s decision.  He asked if the misconduct hearings were held in public and if the proceedings affected the criminal case.  He asked for clarity on the issue concerning the witnesses.

Mr Gunda agreed with the position of the other Members.  The merits of the case were of a serious nature and he doubted that the witnesses would give contradictory evidence in the different proceedings.

Mr Matila said that most of the cases dealt with by the Magistrates Commission took a long time to be finalised.  He suggested that the Commission speeded up the process and avoided lengthy disciplinary matters.

Mr Watson queried the role of the Committee as it would appear that the Committee could not influence the decisions of the Commission.

Mr Bloem suggested that the Committee requested the Commission to finalise the disciplinary matter within 30 days.

Mr Meijer explained that the provisions of Section 13 of the Magistrates Act required the submission of progress reports to Parliament.  Section 4 required Parliament to pass a resolution to remove a Magistrate from office.  He explained that the witnesses involved in the criminal case included two State agents who had set a trap for Mr Rambau and his co-accused.  Conflicting evidence might be provided in the disciplinary matter, which might prejudice the State’s case.  The Commission was reluctant to take any action that might allow Mr Rambau to be found not guilty on a technicality.  The proceedings of the Commission were open to the public unless the Presiding Officer ruled otherwise.  The Commission respected the Constitutional rights of individuals.  He conceded that Magistrates had the legal knowledge to delay the process as much as possible.  Proceedings were affected by the availability of the members of the Commission as well.

Mr Watson concluded that the Committee could either note the report or set it aside.  He proposed that the Committee noted the report on Mr Rambau.

Mr Nzimande remained unconvinced by the Commission’s argument.

The Chairperson said that the Committee had noted the report.  He expected that the matter concerning Mr Rambau was speeded up after October 2011.

Progress Report dated 24 February 2011 to Parliament: Provisional suspension from office – Magistrate MT Masinga, Umlazi
Mr André Louw, Member of the Magistrates Commission advised that Mr Masinga appeared in the Durban Magistrates Court on 19 March 2009 on charges of contravening the Domestic Violence Act, failure to comply with a court order and assaulting his wife and daughter.  He was eventually convicted of attempted murder on 23 May 2011.  The date for sentencing was set for 12 August 2011.

The Commission charged Mr Masinga with three counts of misconduct on 8 February 2010.  Mr Masinga requested the National Education Health and Allied Workers Union (NEHAWU) to appoint an attorney to represent him in the disciplinary matter.  The misconduct proceedings commenced on 26 August 2010 but NEHAWU requested a postponement, pending the outcome of the criminal case.  The Presiding Officer postponed the case to 21 October 2010 and again to 4 February 2011 but Mr Masinga and the NEHAWU representative failed to appear before the Commission.  The matter was postponed to 28 March 2011 and subsequently remanded to 24 May 2011 and 22 August 2011.  Mr Masinga had been requested to show cause why his remuneration should not be withheld.

Discussion
Mr Nesi remarked that similar cases against members of the South African Police Service (SAPS) were dealt with speedily.  He asked why misconduct cases against Magistrates took such a long time to be resolved and why they had to show cause before their salaries were stopped.

Mr Meijer explained that Magistrates were public office bearers and were subject to the Magistrates Act.  Police officers were public servants and were represented by labour unions.  Magistrates were not employees and the Commission was legally obliged to request the Magistrate concerned to show cause.  The Commission would consider the response before ruling in the matter.  Magistrates could elect to have legal representation in disciplinary cases, which generally took a long time to finalise.  A Parliamentary resolution was required to suspend a Magistrate from office.

Mr Bloem observed that Mr Masinga was represented by NEHAWU.  He asked if Magistrates were allowed to belong to labour unions.  (His question was not responded to).

The Committee noted the report.

Progress Report dated 24 February 2011 to Parliament: Provisional suspension from office – Magistrate LB Maruwa, Daveyton
Mr Louw advised that Mr Maruwa appeared before the Springs Regional Court on 24 August 2007 on eleven counts of Fraud.  He was convicted of fraud on 29 September 2009 on all eleven counts and sentenced to a fine of R5,000 or 12 months imprisonment on 9 November 2009.  Mr Maruwa paid the fine but appealed against his criminal conviction and sentence.  The judges on appeal referred the appeal to a full bench of the North Gauteng High Court on 3 March 2011.  The appeal would be heard on 25 July 2011.

The misconduct enquiry commenced on 4 June 2010 but was postponed at the request of the defence, ending the outcome of the appeal.

The Committee noted the report.

Progress Report dated 24 February 2011 to Parliament: Provisional suspension from office – Magistrate D Jacobs, Clocolan
Mr Meijer advised that Mr Jacobs was provisionally suspended from office with effect from 30 March 2010.  The suspension was confirmed by both Houses of Parliament in June 2010.  The NCOP requested the Magistrates Commission to review the judgments rendered by Mr Jacobs during the preceding three years during which it was alleged that he was intoxicated on the bench.  A Judicial Quality Assurance Magistrate reviewed all judicial work performed by Mr Jacobs during the period concerned and submitted a report to the Commission on 30 June 2010.

Mr Jacobs was charged with ten counts of misconduct on 27 May 2010.  On 16 July 2010, Mr Jacobs was arrested and appeared before the Clocolan District Court on 19 July 2010 on a charge of driving a vehicle under the influence of liquor.  The Commission added further charges of misconduct against Mr Jacobs.  The misconduct enquiry commenced on 6 August 2010 but was postponed to 22 September 2010.  The Presiding Officer was informed by the defence counsel that Mr Jacobs suffered from post traumatic stress disorder and depression and had developed a serious alcohol dependency.  The Commission heard the evidence of a clinical psychologist as well.  The misconduct enquiry was converted to an inquiry into Mr Jacobs’ capacity to carry out his duties of office.  On 24 April 2011, the Commission found Mr Jacobs incapable of carrying out his duties.  In the interim, Mr Jacobs had filed a request with the Minister of Justice and Constitutional Development to allow him to vacate his office on account of continued ill health.  The response of the Minister was awaited.

The Committee noted the report.

Progress Report dated 24 February 2011 to Parliament: Provisional suspension from office – Magistrate CM Dumani, Graaff-Reinet
Mr Louw advised that Mr Dumani was provisionally suspended from office with effect from 16 September 2009.  His suspension was confirmed by both Houses of Parliament in November 2009.

Mr Dumani was charged with four counts of misconduct, which arose from four charges of sexual harassment against female clerks at the Graaf-Reinet Magistrate’s Office.  The Commission commenced proceedings on 5 August 2009.  Mr Dumani had legal representation during the enquiry and had elected not to make any submissions.  Mr Dumani was found guilty of three of the four charges.  On 24 May 2010, the Presiding Officer recommended that Mr Dumani be removed from office.  Mr Dumani was given the opportunity to lodge written representations to the Commission.  Having considered the representations received, the Commission resolved to support the recommendation that Mr Dumani be removed from office at its meeting held on 26 and 27 August.  The Minister was appraised on 2 September 2010.

On 13 September 2010, Mr Dumani requested the Eastern Cape High Court to interdict and restrain the Minister of Justice and Constitutional Development from taking further action against him, pending the determination of another application to review and set aside the Presiding Officer’s decision in the disciplinary proceedings.  The Minister did not oppose the application and on 21 October 2010, the High Court granted the order in favour of Mr Dumani.  The review application was opposed.  The matter was to be heard on 24 March 2011 but was postponed.  The court date was awaited.  Mr Dumani continued to receive his remuneration.

The Committee noted the report.

Progress Report dated 24 February 2011 to Parliament: Provisional suspension from office – Magistrate IWOM Morake, Lichtenburg
Mr Meijer advised that Mr Morake was provisionally suspended from office with effect from 4 November 2011.  The suspension was confirmed by both Houses of Parliament in November 2011.

The Magistrates Commission charged Mr Morake with several counts of misconduct on 29 December 2010.  The charges arose out of complaints lodged against Mr Morake with the Magistrates Commission.  The progress report included details of five complaints that were lodged against Mr Morake.  The Commission’s Ethics Committee considered Mr Morake’s written explanation on the charges of misconduct and resolved on 10 February that the misconduct enquiry was proceeded with.

On 13 July 2007, Mr Morake appeared before the Lichtenburg District Court on three charges of theft.  He was convicted on two of the three charges on 18 October 2010.  After several postponements, Mr Morake was sentenced to four years’ imprisonment on each count.  The sentences would run concurrently but Mr Morake would be jailed for at least six months.  He was granted leave to appeal.

The misconduct enquiry was scheduled for 11 April 2011 but was postponed to 24 June 2011 and Mr Morake was requested to submit proof of his appeal.  The matter concerning Mr Morake’s conviction of a criminal offence was included in the misconduct charges.

The Committee noted the report.

Progress Report dated 24 February 2011 to Parliament: Provisional suspension from office – Magistrate L Skrenya, Cala
Mr Louw advised that Mr Skrenya was provisionally suspended from office with effect from 4 November 2011.  The suspension was confirmed by both Houses of Parliament in November 2011.

The Director of Public Prosecutions: Transkei directed on 5 August 2009 that Mr Skrenya be prosecuted on a charge of fraud.  He appeared before the Cala District Court on 18 September 2009.  The criminal charge arose from a fraudulent transport allowance claim.  Preliminary investigations into other complaints filed against Mr Skrenya found that on 12 May 2009, he had irregularly refused to adhere to a request by the prosecutor to withdraw a criminal charge against an accused.  Instead, Mr Skrenya postponed the case and ordered the accused to be kept in custody.  His decision was later set aside by the High Court on special review.  His conduct had resulted in the Minister of Justice and Constitutional Development being sued for damages.  Other allegations concerned the holding of a criminal court that was not properly constituted and the postponement of various criminal cases in chambers in the absence of the prosecutor.

The misconduct enquiry against Mr Skrenya commenced on 4 October 2010 but was postponed by the Presiding Officer to 9 and 10 December 2010, pending the outcome of the criminal case.  The criminal case was set down for trail in February 2011 but was postponed to 28 June 2011.  The misconduct case was scheduled to resume on 4 July 2011.

The Committee noted the report.

The Chairperson thanked the Magistrates Commission for the progress reports.

Adoption of Minutes of Committee Meetings
The Committee lacked a quorum and the adoption of the minutes of previous Committee meetings was postponed.

The meeting was adjourned.