Department of Justice audit reports: Auditor-General's briefing; Magistrates' Commission disciplinary matters

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Justice and Correctional Services

18 October 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Auditor-General South Africa (AGSA) briefed the Committee on its mandate and legislative requirements around audits. The differences between each of the findings of unqualified or modified audits, qualified, disclaimer and adverse findings were explained. It briefly cited the audit outcomes also for the entities. AGSA also explained the difference between an emphasis of matter, and additional matter. The audit outcomes for the Department of Justice and Constitutional Development (the Department) and the National Prosecuting Authority (NPA) were presented. The Department had, for the fourth time in succession, received a qualified report, with matters raised, whilst the NPA had a qualified report, but with emphasis of matter. Neither followed the correct procedures for performance audit. The reasons for the qualifications, and the matters raised, were outlined and explained in full. Neither entity complied in all respects with the necessary legislation. Both had findings in relation to control deficiencies, relating to leadership, and financial and performance management. There were no major concerns around governance. There had been irregular expenditure. There were problems with supply chain management policies and procedures and finance leases, and, at the Department, not all accounts were paid within 30 days, possibly because the Department would have over-spent had it effected these payments on time. The performance indicators for both entities were set out, noting that the information was not always reliable or time-bound. Both entities had failed in some respects to comply with all legislation in respect of financial and human resource matters. There were several instances where lack of monitoring controls led to the qualifications.

Members asked for clarity on restatements of figures, asked why some schedules may not be audited by AGSA, and if AGSA was able to identify those responsible for the errors, and what would be done. AGSA suggested that the Committee should question the Accounting Officer about various matters, and what would be done to address them. AGSA also stressed that the Minister was taking the matter seriously, and that the Internal Audit function would have to be more closely involved. Members were concerned that several of the matters raised were not complex, where systems should have been in place as a matter of course, and had recurred year after year. Members asked how validity of sick leave was measured, questioned accumulated leave, performance of outside work and failure of some managers to sign performance agreements, as well as failure to obtain suppliers’ declarations of interest. They noted that engagement with AGSA should take place earlier in the following year.

The Magistrates’ Commission presented its reports on various disciplinary matters. Because the matters had formally to be tabled, and because there was not a quorum, Members agreed to hear the requests but would only decide on them in the following week. They indicated that they were in agreement with the Commission’s recommendations in most instances, particularly those where the magistrates were found guilty of criminal conduct, but requested more details on the matters of Mr Hole and Mr Jacobs.

Meeting report

Audit reports of Department of Justice & entities: Auditor General South Africa
Mr Lourens van Vuuren, Business Executive responsible for Justice Portfolio, Auditor General South Africa, and Ms Trudie Botha, Senior Manager, Auditor General South Africa, presented a general overview of the purpose of an audit, and also the general audit outcomes of the Department of Justice and Constitutional Development (DOJCD or the Department) and its entities.

Ms Botha outlined the Auditor General South Africa (AGSA) mandate, and the legislative requirements of the Public Finance Management Act (PFMA), the Constitution and the Public Audit Act. She described the different audit opinions that could be given by the Auditor-General (AG), namely, unqualified or unmodified  with no emphasis of matter, unqualified but with matters raised, qualified, disclaimer or adverse. She described what would determine when each was given (see slide 6 of attached presentation).

An unqualified opinion was given when the auditor concluded that the financial statements showed that the financial statements were presented fairly in all material respects. Emphases of matter might be added, but she stressed that this would not affect the auditors’ opinion that the statements were fairly presented. A qualified opinion would be expressed when the auditor concluded that the effect of disagreements with management regarding departures from the financial reporting framework, or limitations of scope, did not result in the financial statements being fairly presented, although they were not so material and pervasive as to require an adverse or disclaimer opinion. A disclaimer would be expressed when the possible effect of limitations on scope was so material, or there was insufficient evidence produced to allow the auditor to form an opinion. An adverse opinion, the most serious type, would be given when mere qualification of the report would not be adequate to disclose the misleading or incomplete nature of the financial statements.

She explained the difference between emphasis of matter, and additional matter. Neither had an effect on the audit opinion, so an unqualified opinion could still be given. An emphasis of matter would draw the users’ attention to something in the financial statements. Additional matters would draw attention to something in the Annual Reports, but not the financial statements.

AGSA currently had eight types of emphases of matter. These were matters in relation to the financial reporting framework, significant uncertainties, such as legal claims, revision of previously-issued financial statements, restatement of corresponding figures, material underspending, accruals (possible overspending which may be unauthorised), any problems that related to the going concern of the entity, and irregular, and fruitless and wasteful expenditure. She emphasised again that even if the financial statements were fairly presented, these matters could be drawn to the user’s attention.

The typical types of additional matters raised would be audits in the past by another auditor, material inconsistencies, and supplementary schedules that had not been audited by AGSA.

Ms Botha tabled the history of the audit outcomes over the last four years, in respect of the Department of Justice and Constitutional Development (DOJCD) and the National Prosecuting Authority (NPA). DOJCD had qualified reports, with other matters, for all four years, although there was a reduction in the number of matters raised. NPA had been qualified between 2007 and 2009/10, and although it had received an unqualified report in 2010/11,  there were other matters raised. Neither entity had agreed-upon procedures of performance audit.

The DOJCD audit qualifications related to all accounts linked to third party funds, receivables, contingent liabilities and provisions relating to, questions on the completeness of records and irregular expenditure, as set out on page 115 of the Annual Report. In respect of the DOJCD, emphasis of matter related to irregular expenditure, restatement of corresponding figures, and accruals. Some supplementary schedules were not audited.

The NPA emphasis of matter related to a restatement of corresponding figures, and irregular expenditure.

Adv S Holomisa (ANC) asked for more detail on the restatements.

Ms Botha explained that something might be identified during the audit process that required an entity to change its figures. If the entity picked this up itself, it must notify AGSA and give details of why this occurred. In some instances, AGSA might identify the need to restate the figures.

Ms Botha continued that there were no findings reported for NPA on predetermined objectives. She would discuss the findings on this for the DOJ later. Neither entity complied in all respects with the necessary legislation. Both had findings in relation to control deficiencies, relating to leadership, and financial and performance management. There were no major concerns around governance.

Ms Botha indicated that the slides from slide 15 onwards went into the specifics of the qualifications (see attached presentation). She said that there was nothing new, but that lack of controls meant that AGSA could not confirm that the revenue in third party funds, or the figures in respect of claims, were correct. There were no proper systems in place to identify and record irregular expenditure. Most of this had been picked up by AGSA itself, so the qualification related to the completeness of information.

Prof L Ndabandaba (ANC) asked what “unaudited material” would arise, in respect of schedules.

Ms Botha noted that AGSA had specifically decided not to audit the inventory, because DOJCD was still developing these requirements. In other cases, other annexures might support the financial statements, and here AGSA would take a decision whether it was necessary to audit these annexures. However, the financial statements were audited in full.

Mr van Vuuren noted that there was a process in the public sector of moving from the modified cash basis of accounting, to Generally Recognised Accounting Practices (GRAP). DOJCD was still on the modified cash basis. Many of the disclosures were similar to accrual accounting (accounting when expenditure was incurred). DOJCD disclosed its assets, for instance, at cost, although GRAP would require it to show depreciation. For 2011/12, the inventory would probably move to a state where it would be audited, depending on the decision of National Treasury (NT). However, if DOJCD was still not ready to account properly, this would lead to qualifications. Other disclosures were required by NT, for its purposes, but they would not necessarily need to be audited by AGSA. However, this fact was notified to the users of the Annual Report.

Ms Botha then dealt with the emphases of matter for the DOJCD. She again highlighted that these did not affect the audit opinion. Some figures had been changed, and they were adequately disclosed. There was irregular expenditure, in contravention of the Preferential Procurement Policy Framework Act (PPPFA), and details of this were in the Annual Report. There were also problems with supply chain management policies and procedures, and finance leases. Accruals, or payments that exceeded 30 days, were noted. Had these amounts been paid on time, it might have resulted in DOJCD over-spending on its budget.

Ms S Shope-Sithole (ANC) wondered if there might have been deliberate delays in payment to avoid more qualifications.

Mr van Vuuren said that this was possible, as the payments totalled R217 million. Note 22 on page 163 of the Annual Report related to this matter. All creditors should be paid within thirty days, provided the service was rendered or the goods delivered. This was intended to ensure that small entities did not run into cash-flow problems, and also to prevent the situation where payments were delayed to stay within budget. DOJCD would have to disclose over-30-day payments.

Adv Holomisa asked whether AGSA could identify those responsible for expenditure in contravention of the PFMA, and what would be done.

Mr van Vuuren said that the PFMA firstly required that irregular expenditure should be prevented, and that processes must be in place to detect it, and that, if it did occur, it must be disclosed. Furthermore, the Accounting Officer would then have to investigate and decide if anyone could be held responsible. It was important for portfolio committees to follow up on these instances, and determine whether the necessary action was taken by the entity’s Accounting Officer.

Adv Holomisa asked if anyone had been sanctioned in respect of the instances reported for DOJCD.

Mr van Vuuren replied that the Annual Report set out that the DOJCD had not yet taken disciplinary steps, although cases were being investigated, and someone had been appointed to assist with the investigations. Parties were expected to refund that Department. It was therefore vital that this Committee should follow up.

Adv Holomisa asked whether anyone had been found liable, as far as AGSA knew, over all the last four years in which qualifications were discovered.

Mr van Vuuren said that this question must be posed to DOJCD. If AGSA found that a department was not investigating, it would report this. However, page 119 of the Annual Report did state that investigations were ongoing. He noted that not every case would necessarily be reported in the audit report, so the department or entity must be asked by portfolio committees to provide details, or to put more details in their Annual Report.

Mr S Swart (ACDP) noted that on page 118 of the Annual Report, there was mention of procurement and contract management problems. This was another ongoing problem. In some cases, awards were being made to suppliers who failed to provide tax details, or employees performed work outside their remunerative employment. He thought that more engagement was needed with the Department on this. He had already raised the fact that the Accounting Officer had not taken steps to collect money due to the Department. This report was very useful for the Committee. He asked whether AGSA would take any action, other than qualifying the report, when such issues repeatedly arose.

Mr van Vuuren said that at the moment, the audit report was merely a way to communicate outcomes. AGSA tried to influence better audit outcomes, through doing Quarterly Key Control Assessments, where it would focus on the high-risk areas, and it was engaging with the Chief Financial Officer and Director General. There was also engagement with the Minister, who took these comments very seriously, and followed up with the Accounting Officer of the Department. AGSA would like to engage in-year with the Committee on those key controls.

He also stressed that the role and importance of the internal audit unit, which was supposed to test, and report on, key controls, to ensure that appropriate action could be taken on a daily basis. He agreed that some of the matters raised should never have happened. In the DOJCD, there could be challenges due to the number of points where procurement took place, but then there must be proper checks in place, links between audit outcomes and performance management, and other initiatives. A culture of compliance must be created.

The Chairperson commented that it would have been more useful had this engagement with AGSA happened at the beginning of the Annual Report process, so that the Committee had been alerted of the key points prior to meeting with the Director-General. In the following year, this engagement should happen earlier, and ideally AGSA should also be present during the Committee’s engagement with the Department.

Adv Holomisa thought that there should surely be follow-up by AGSA on irregularities running forward from one year to the next.

Mr van Vuuren took this point, but said that currently AGSA did not report in that format. If absolutely no action had been taken, a note would be made to this effect, because it was contrary to the PFMA. However, here AGSA had been told that the investigations were ongoing. AGSA had suggested to management that perhaps they were not moving fast enough.

Mr van Vuuren added that the entity must prepare an Audit Action Plan to prevent negative audit outcomes in the future. AGSA would check this, and would monitor, throughout the year, if management was acting effectively in terms of that Plan. Accounting Officers were now required to give commitments, which could be tracked, and feedback would be given by AGSA on whether they were successfully executed.

Adv L Adams (COPE) noted that qualified audits had been received for four years. She asked how long it should take, from a practical viewpoint, to correct the position and allow the entities to receive an unqualified audit.

Mr van Vuuren noted that it depended on the issues. Some qualifications at DOJCD related to structural issues around accounting for third party funds, so the system would have to be corrected before the qualification could be removed. In the previous year, the Minister of Justice had suggested that this would be a two-year process, as about four years of financial statements were not properly presented. However other qualifications could certainly be corrected within one financial year. The irregular expenditure should easily be corrected, but again, it was possible that the multi-location structure was problematic. DOJCD already showed some positive moves to correction.

Mr Swart said that for all the time he had served on this Committee, third party funds had been a problem, and he was not sure that it would indeed be resolved within two years. The quarterly interaction would keep matters up to date. He noted that there were different avenues from which this Committee could get details of spending but he thought that quarterly meetings with AGSA would be very useful.

Mr Swart noted that Department of Home Affairs had formerly struggled because its internal audit unit had collapsed, and he wondered if the same concerns were apparent here.

Mr van Vuuren said that there was an internal audit function in DOJCD, but its capacity needed to be increased, and once again the numerous locations were a problem, because day-to-day controls had to be tested there. Structural issues around third party funds may not ultimately be the responsibility of the internal audit unit. He suggested that the Committee should engage further with the Department on this.

Prof Ndabandaba asked if any corrective training, or in-service training, was done for those who habitually contributed to the problem.

Mr van Vuuren said that any entity receiving a qualified opinion should definitely engage on this. The Director General of DOJCD had given a commitment to training, especially on supply-chain management. He suggested that the Committee must ask the Director-General to share the Audit Action Plan and commitments with the Committee.

Ms Shope-Sithole asked if AGSA could do an intensive audit on any particular area in the Department.

Mr van Vuuren said that there could be engagement on that. As part of the audit process, AGSA did an intensive risk assessment, and would like to hear of concerns about specific risks, and could consider those areas, although he cautioned that AGSA would not necessarily be able to produce a specific report within a couple of months.

Ms Botha then continued with the presentation. The NPA had also received emphasis of matter on restatement of figures and irregular expenditure.

In terms of performance information, she said that the AGASA looked at the usefulness, as well as the reliability of performance information For the DOJCD, 21% of the targets were not time bound and 26% of the indicators were not clear, as unambiguous data definitions were not available. In terms of reliability, AGSA could not always get evidence as to why specific targets were not achieved. She explained that information would be disclosed, but AGSA had to be satisfied on the reasons. AGSA had not always been able to get the source information to confirm that performance reports were valid, complete or accurate.

Ms Botha then presented on the Compliance Findings (see attached slides 19-5). She set out a table of the requirements of the various pieces of legislation, indicating for each whether the DOJCD and the NPA had complied. She then presented similar tables in respect of human resource management. Not all senior managers at DOJCD and NPA had signed performance agreements. There was no evidence of sufficient controls to ensure that sick leave was not abused, at DOJCD. In the NPA, funded vacant posts were not filled in twelve months, and the cost of living adjustments to prosecutors were not approved and gazetted.

Adv Holomisa asked why there seemed to be difficulties in these areas, pointing out that they were surely standard practices.

The Chairperson thought that more detail was needed from the Director General on the senior managers who had not signed performance agreements.

The Chairperson asked what evidence would be required to support non-abuse of sick leave.

Mr van Vuuren said that the Accounting Officer should explain why these requirements were not filled. It was necessary to look in totality at performance management, including the existence of contracts, and the content of those contracts that would drive clean audits. He agreed that these were basic and key controls. AGSA would look at overall control systems to manage sick leave, such as the steps taken to record it, whether there seemed to be abuse, how much sick leave was being taken and how much it would cost. The DOJCD was a very labour-intensive department, with the bulk of the budget going to human resources, which made it important to ensure that sick leave was managed properly.

Adv Adams asked what would be “valid reasons” for taking sick-leave, and how this validity would be determined.

Mr van Vuuren said that the trends should be considered. A person might, for instance, tend to take off one or two days, which might not require a doctor’s certificate in normal circumstances, but when this was noted as a trend, the entity could ask for a doctor’s letter on every occasion.

The Chairperson also asked about accumulated leave, mentioning that the Committee had come across a case where a Regional Court Head had accumulated eighteen months leave, and insisted on taking it to run over into retirement. There should be controls of “use or lose”, or limits on accumulation. He asked if AGSA or anyone else would institute control mechanisms.

Mr van Vuuren said that government had realised that there were some problems, and that, in the past, nothing had prevented this situation, although the position was subsequently corrected. AGSA focused on whether leave was recorded when taken. The new rules required that all “old leave” be capped, and was paid out on the salary applicable in that year, as well as new rules that a certain number of leave days must be taken each year, before a certain time, failing which it would be forfeited. That led to better management.

Ms Botha continued to present of the non-compliance on expenditure management, noting that this linked back to the audit outcomes. In both DOJCD and NPA, the Accounting Officer did not take effective and appropriate steps to prevent and detect irregular expenditure. At the NPA, the necessary reports on irregular expenditure were not reported, as required, to NT.

The table on non-compliance with procurement and contract management was linked to the audit outcomes. Most related to the DOJCD, but in some instances the NPA was also found wanting. Three price quotations were not always obtained, not all tenders were advertised, there were incorrect calculations for preferential procurement, suppliers were not checked for compliance with tax procedures, and one contract was modified to the extent that the competitive bidding process was circumvented.

Officials from both the DOJCD and NPA had performed remunerative work without written permission. In the NPA, some suppliers had received awards without filling out the declarations of interest.

Mr Swart raised a problem that often occurred in small towns, where it might be impossible to obtain three quotations because there were not three suppliers, and where something might need to be done urgently, such as fixing a toilet. He asked if an exemption process applied.

Mr van Vuuren said that Treasury Practice Notes did make provision for circumstances where there was a sole supplier, or emergency, in which case the Accounting Officer could give the necessary delegations. However, a general advertisement should be done, and a suppliers’ list should be obtained, which would indicate who and where the providers of services were. The PFMA and Constitution required that all procurement should be fair, equitable and transparent. He agreed that in small towns, where there might be one plumber, special delegations should be made. However, this must be documented as well. He said that this area was open to abuse, and therefore AGSA tried to satisfy itself that the correct procedures were followed.

Mr Swart asked about the extent of remunerative work being undertaken without permission, outside the DOJCD and NPA. The giving of a few lectures might not be a problem. He also asked if there was a follow up to ensure the repayments of unauthorised income to the State, in terms of the legislation.

Mr van Vuuren agreed that any outside work must be approved by the executive authority, and, failing that approval, the remuneration should be repaid. These cases had been notified to the Accounting Officer and it was now up to the entities to follow up on them. The focus of AGSA this year lay in comparing payroll information to the Companies and Intellectual Property Registration Office (as it then was) database, so it could identify shareholders of companies.

Mr Swart said that the Receiver of Revenue should also be advised.

The Chairperson said the names of those taking on outside work, as well as those involved in contracts, should be obtained from the Director General.

Ms Botha tabled slides on non-compliance with revenue management, asset management, and financial misconduct. In all cases, the DOJCD had instances of non-compliance. AGSA was not able to see that investigations were, in all instances of alleged financial misconduct, instituted within 30 days.

In respect of Internal Controls, neither DOJCD nor NPA showed sufficient oversight responsibility regarding financial and performance reporting. In DOJCD, internal policies and planning were not sufficient to ensure reliable reporting. In both DOJCD and NPA, management had not prepared regular, accurate and complete financial and performance reports. Management did not have sufficient monitoring controls.

Mr Swart asked how serious these indictments were. He disagreed with the glib claims of some entities that this amounted to “standard audit terminology”.

Mr van Vuuren agreed that it was serious, particularly given that this had led to the negative findings and qualifications, and the public statement of this meant that the entities had to address the matters to prevent future negative audit outcomes. The Director General of DOJCD had taken this very seriously.

Ms Shope-Sithole asked if anyone had been made responsible for filing source documents, as it was crucial that these be made available. This was not a mistake, and had to be addressed.

Ms Botha responded that there were not sufficiently clear performance indicators to ensure consistent recording of information. In the absence of clear guidance, nobody had known exactly what to submit.

Ms Botha then noted that AGSA also had to report on “other reports”. At the DOJCD, an investigation was being conducted by an independent party, at the request of the Department, to identify possible irregularities into supply chain management, as well as possible fruitless expenditure. This investigation was ongoing. At the NPA, an investigation was conducted into irregular procurement. It had been finalised, and AGSA recommended that action be taken against officials, although it had no mandate to recommend what specific action be taken. PFMA required that disciplinary steps be followed.

The Chairperson noted that the Committee would need to follow up on both matters.

Ms Botha presented the recommendations that were made by AGSA. If these were followed, they might result in a clean audit outcome. Some were clearly linked to the qualifications, and some were broader. She suggested that management should be asked to give feedback on these. AGSA had recommended that the accounting framework and proposed governance structure that would influence the format and structure of financial reporting must be finalised. Both entities must strengthen controls. Detailed policies, procedures and business processes must be formulated, and communicated to staff, should be monitored and action taken against any transgressors. The strategic plans needed to be reviewed against the SMART targets. There should be a review process to ensure compliance, and decisive and immediate action should be taken against those who transgressed. A very important part was that the risk assessment must include compliance. An Audit Action Plan must be developed, with clear targets, which in turn needed to be monitored, and the Internal Audit unit should be involved. Quarterly assessments would be done by AGSA of the controls. Before submitting the financial statements, there should be a proper review process to enable management to identify the errors. Performance management contracts must be entered into, and action must be taken against poor performers.

Adv Holomisa noted that all these recommendations seemed logical and sensible. He thought that many of the items should be instituted as standard practice already, and questioned why still nothing seemed to change, year on year.

Mr van Vuuren said that perhaps management should be asked about the apparent lack of improvement.

Ms Botha then presented an overview of the other entities. The Third Party Funds had not submitted financial statements since 2007/8. The Public Protector and South African Human Rights Commission were not on this list, because they were Constitutional entities, but would be added and sent to the Committee. They were given unqualified reports. The Special Investigating Unit, Legal Aid South Africa, Guardian’s Fund, Criminal Asset Recovery Account (CARA), Third Party Funds, and President’s Fund all received financially unqualified statements. Those of Legal Aid South Africa and the Guardian’s Fund had no matters of emphasis. Some errors were identified in CARA, which were corrected. There were points made about compliance and the presentation of information for the Special Investigating Unit.

The Chairperson asked that the Constitutional entities be included in the next audit report. He requested that  AGSA be present when there was engagement with the Department or other entities.

Magistrates’ Commission reports on disciplinary matters
The Chairperson advised Members that meetings of portfolio committees could only be closed if there was sufficient motivation, and, as had been the practice before, he had requested a closed meeting for discussion of disciplinary matters by the Magistrates’ Commission (MC), but it subsequently came to light that the Magistrates’ Commission conducted its disciplinary hearings in an open forum. For this reason, he did not think this meeting could be closed. 

Ms M Smuts (DA) indicated that she would be satisfied that the meeting be held openly, and all other Members agreed.

Mr Hans Meijer, Magistrate, Magistrates’ Commission, noted that the MC would present one report for provisional suspension from office, five matters concerning withholding of remuneration, and two requests for removal of magistrates from office.

During the process, Members raised questions as to what was required of the Committee at this stage. The Chairperson noted that there was not a quorum present. He also asked if this was a formal referral.

The Committee Secretary informed the Committee that the reports were tabled on the NA Table, but formal referral was needed.

Members decided that the MC should proceed with the briefing, but that the formal decisions by the Committee would not be taken at this meeting.

Hole matter
Mr Andre Louw, Magistrate, Magistrates Commission, noted that Mr Hole was appointed as a regional magistrate in 2006. On 17 May 2011 his Regional Court President had notified him of objections raised by officials from Social Development in relation to lack of progress in one of his cases. Mr Hole objected to this, and caused a subpoena to be issued against the Regional Court President, calling on the latter to give evidence in a criminal matter of which he clearly had no knowledge. He had used that platform to make various comments against the knowledge, qualifications and skills of the Regional Court President, and to discuss the dispute between the two. A further problem was that he had failed to ensure that the hearings were held in camera, despite the fact that one of the accused was under 18 years of age. In another matter, despite the fact that this matter was handled by Magistrate Smith, and was remanded by that magistrate on various occasions, Mr Hole allegedly had the matter enrolled in his own court and presided over it. The MC felt that the transcripts displayed an abuse of judicial power and brought the profession into disrepute, and that he ridiculed the Regional Court President. The MC had investigated the matters, the two investigators had recommended that he be provisionally suspended, and Mr Hole was then given the opportunity to comment on that. He denied the allegations about the moving of the case to his roll, proffering excuses of a duplicate charge sheet, and denied that there was anything improper in his subpoena of the Regional Court President, and alleged that the latter had misled the MC.

Mr Swart commented that these were serious allegations as regional court magistrates had substantial powers. He asked if Mr Hole had laid complaints against the Regional Court President.

Mr Louw said he had, and both complaints were investigated. A Report had been compiled in the complaint against the Regional Court President but it was decided to  hold it in abeyance so both matters would be considered simultaneously.

Mr Swart asked if there was a reason why Mr Hole’s response letter, from which extracts were read, was not provided to the Committee.

Mr Louw said a copy could be made available.

Mr Swart asked what the purpose was of the subpoena.

Mr Louw answered that it seemed to arise out of the grudge, as there was no direct link to the case; this had merely been used as a platform to question the Regional Court President.

Mr Swart thought that the abuse of process justified a suspension.

Ms Shope-Sithole agreed, saying he had shown an arrogant attitude, as opposed to neutrality.

Adv Holomisa declared his interest, as he knew Mr Hole. Mr Hole had contacted him but he had not responded.

Mr Landers noted this and said that he might wish to recuse himself when a decision was taken, but there was no objection to him discussing the matter. 

Adv Holomisa thought that not enough information had been placed before the Committee, but he commented that surely the matter should have been pursued in Chambers.

Ms Smuts said that Mr Hole had already had the opportunity to comment whether the provisional suspension was appropriate

Adv Adams asked how far the investigation had gone.

Mr Louw said that new allegations were continuously being laid, and the investigators had to report on a weekly basis. It was hoped that it would be finalised as soon as possible. The drafting of a charge sheet was in the process.

Mr Swart said that if both cases were being investigated, then this should proceed. The response by Mr Hole did not persuade him that the suspension was not warranted.

Prof Ndabandaba said he was inclined to support the provisional suspension, and asked if the MC had needed to take any steps to ensure that the two did not resort to physical violence.

Mr Meijer informed the Committee that the Minister had already provisionally suspended Mr Hole, so he was not at the office. Parliament would have to confirm the provisional suspension.

Members agreed, after discussion, that the background information and letters must be furnished.

Mr Masinga
Mr Louw explained that this was a request for withholding of remuneration. Mr Masinga was charged with misconduct, arising out of an incident under the Domestic Violence Act. He had failed to comply with the court order in that instance, and had committed an assault on family members, using an axe and broom, in March 2009. He was provisionally suspended, with pay, on 3 February 2010, pending the finalisation of criminal charges against him for attempting murder. He was convicted by the criminal court on 23 May 2011. On 26 September 2011 the MC resolved that his remuneration now be withheld. He was intending to take the criminal conviction (which was set down for sentencing in December) on appeal. The inquiry into misconduct by the MC commenced on 26 August 2011, and was postponed to 31 October.

Mr Meijer explained that the MC would determine whether remuneration should be withheld. The Minister, in such a case, must compile a report and have it confirmed in Parliament.

Adv Holomisa thought that, in light of the conviction, there was no reason why the salary should not be withheld.

Mr Maruwa
Mr Louw noted that Mr Maruwa had resigned with effect from 17 October 2011, after his salary had been withheld. Parliament would, however, still have to confirm the withholding of the remuneration.

Adv Holomisa noted that there was no need to go through the details. He was convicted, and his appeal against the criminal charges had not been upheld by a full bench.

Members agreed they would make a final decision on the information already furnished to them.

Mr Morake
Mr Meijer reported that Mr Morake was convicted on two charges of theft, and although  he had not yet been sentenced, he had indicated that he would appeal against the conviction. A MC disciplinary inquiry would proceed in November. The MC had recommended that his remuneration be withheld in the meantime. Mr Morake had been invited to show cause why the remuneration should not be withheld, but his response merely touched upon mitigatory issues, and the fact that he would appeal.

Adv Holomisa said that this was similar to the previous matter, and he would not be opposed to withholding remuneration where criminal charges had been confirmed by a court.

Mr Jacobs
Mr Meijer noted that there were two reports on Mr Jacobs. One report related to his removal from office, and the second to the withholding of remuneration pending his removal from office. Mr Jacobs was charged by the MC with twelve counts of misconduct, because he had been drunk on duty and absent from office. Some questions were raised as to whether the alcohol-dependency should be construed as ill-health. During the disciplinary inquiry, his defence attorney had noted that he suffered from post-traumatic stress disorder after his military service, when he was forced to make decisions for which he was not well-equipped. A clinical psychologist had testified that, notwithstanding this, Mr Jacobs made the decision whether or not to turn to alcohol. The matter resulted not in him being boarded on grounds of ill-health, but a recommendation that he be removed on the grounds of incapacity to carry out his duties. Mr Jacobs was invited to respond, but had failed to do so within the ten days allowed.

Ms Smuts and Mr Swart asked what the consequences of a finding of incapacity would be on his right to claim his own and the State contributions to his pension, paid since 1983.
 
Mr Meijer said that a suspension was treated similar to a resignation. He clarified further that Mr Jacobs elected not to call a neurologist to testify about medical boarding, and that this alcohol dependency had become apparent about four years earlier. The MC felt that there was no reason why a magistrate found unfit to work should continue to receive remuneration while Parliament dealt with the removal process. However, he would obtain further details on the pension.

Mr Dumani
Mr Meijer noted that one request on Mr Dumani related to removal from office, and one to withholding of salary. Mr Dumani was charged with three counts of misconduct involving sexual harassment. The MC, on conclusion of the inquiry, and after considering his representations, recommended to the Minister that he be removed from office. However, before the Minister could file his report in this regard, Mr Dumani filed an urgent application to interdict the Minister from taking any further steps, pending another application that he would bring in the High Court to set aside the MC’s findings. That urgent application was not opposed by the Minister, but was dismissed, with costs, on 12 August 2011. Once the matter was dismissed, the MC again approached the Minister to institute the report, since the recommendation for removal still stood. However, Mr Dumani then noted that he would apply for leave to appeal against the review dismissing the interdict, and had filed the papers, but no date was set. In terms of rule 49 the order of the High Court was therefore suspended. He was threatening to have the Minister arrested if the report was tabled in Parliament. For this reason the MC suggested that the report for dismissal not be considered after the application for leave to appeal against the review. The MC had asked for urgent setting of a date for the application for leave to appeal.

Mr Swart said this was a new tactic, noting that since the review application took a year to be considered, Mr Dumani had effectively been paid another year’s salary. He urged that the Ministry must recover the costs of the review.

Mr Meijer then said that the Minister “must” draw a report once the MC had recommended withholding of the remuneration, and table it in Parliament. He said that because Mr Dumani’s application was against the Minister, not the MC, the latter was still requesting confirmation of the decision to withhold remuneration.

Committee Members indicated their support.

The Chairperson noted that final decisions on these matters would be taken in the following week.

The meeting was adjourned.

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