Magistrates Commission requests for suspension of magistrates and salary

Meeting report

Mr Hans Meijer, Magistrate, The Magistrates’ Commission, and Mr Andre Louw, Magistrate, The Magistrates’ Commission, attended the meeting to present the Magistrates’ Commission (MC) reports and requests pertaining to various magistrates.

Withholding of remuneration: Mr T Masinga
The Magistrates’ Commission (MC) was recommending the withholding of remuneration for Mr T M Masinga, Magistrate at Emlazi. Mr Masinga was convicted by the Regional Court in Durban on a charge of attempted murder, on 23 May 2011. The case was postponed for sentencing. Mr Masinga had indicated his intention to appeal or review.

The Commission had based its recommendations for Mr Masinga’s provisional suspension on the serious nature of the allegations against him, as well as to protect the image of the Bench, and on 4 June 2011, Parliament confirmed Mr Masinga’s provisional suspension from office. This provisional suspension was currently a suspension with remuneration. Mr Masinga was currently represented by the Educational, Health and Allied Workers Union (NEHAWU). The MC believed that there was no reason why a magistrate, who was already on provisional suspension, and who had been convicted of a serious offence by a Court of Law, should still be paid for the period of provisional suspension, pending the finalization of the misconduct inquiry. The Heads of Argument raised by Mr Masinga did not appear to take the matter any further, and did not address why the MC should not withhold Mr Masinga’s remuneration.

Mr H Meijer and Mr A Louw reminded the Committee that if the Magistrates’ Commission determined that the remuneration of a magistrate should be reduced or withheld, a report and reason must be tabled, by the Minister of Justice, within seven days.

Members agreed that the remuneration for Mr Masinga should be withheld.

Provisional suspension: Mr P S Hole
Mr P S Hole was 48 years of age and has served in the Department of Justice and Constitutional Development for some years, firstly as an Acting Judge in the former High Court of Transkei from October 2004 to July 2006. He was appointed a magistrate in December 2006, and as a Regional Magistrate in March 2007.

The Magistrates’ Commission based its application on an incident arising out of a dispute between the Regional Court President, Northern Cape, and Mr Hole, who was a Regional Magistrate in Kimberley. The Regional Court President had notified Mr Hole of a complaint by a social worker in regard to lack of progress on certain cases. Mr Hole objected to this. On 7 June 2011, Mr Hole caused a matter that was no longer on his roll to be placed before him. Additionally, in a manner that might be construed as abuse of power, he ordered the Regional Court President subpoenaed to give evidence, in a case where he clearly had no knowledge of the case and could not provide any evidence, and then used this platform to question the Regional Court President and make allegations against him.

Mr Hole had been afforded the opportunity to comment as to any reasons why he should not be suspended provisionally, pending the outcome of an investigation by the MC into his fitness to hold the office of a Magistrate.

The Committee members agreed upon the provisional suspension of Mr P S Hole.

Withholding of remuneration: Mr L B Maruwa
Mr Meijer and Mr Louw noted that Mr L B Maruwa, a magistrate at Benoni, had been on provisional suspension since 3 February 2010. On 4 June 2010, Parliament had confirmed the provisional suspension, and since that date he had been suspended with remuneration. The MC brought the application to suspend him on the serious nature of the allegations against him, as well as to protect the image of the Bench.

Mr Maruwa was convicted by the Regional Court on 11 counts of fraud, on 29 September 2009. On 9 November 2009 he was sentenced to a fine of R5000-00 or 12 months imprisonment. Mr Maruwa appealed to the South Gauteng High Court against his criminal conviction and sentence. The judges on appeal did not give judgment, but referred the appeal to the full bench of the North Gauteng High Court, Pretoria. On 29 July 2011 this Court dismissed Mr Maruwa’s appeal against his conviction and sentence.

The misconduct hearing had commenced on 4 June 2010, the date on which the provisional suspension was confirmed by Parliament, but it was then postponed, without a date being set, pending the outcome of the appeal. The Magistrates’ Commission had initially followed a procedure that in instances where a misconduct inquiry was instituted following criminal charges against a magistrate, the misconduct inquiry should not be proceeded with, pending the outcome of the criminal case, but it had later resolved that it could proceed with misconduct inquiries notwithstanding pending criminal proceedings. Mr Maruwa believed that this should not proceed. He had also indicated his intention, notwithstanding the dismissal of his appeal by a full bench, to make application for leave to appeal to the Supreme Court of Appeal. The MC would oppose this application.

Mr Meijer and Mr Louw stated again that the MC was of the view that there seemed to be no reason why this magistrate, who was on provisional suspension and who had been convicted of a serious offence by a Court of Law, should still be paid, pending the final determination of the application for leave to appeal. Mr Maruwa was afforded an opportunity to show cause why the Commission should not determine to withhold his remuneration, and representations were sent by his attorneys, but the MC was not convinced that they were sufficient.

The Members of the Committee agreed upon the withholding of remuneration from Mr L B Maruwa.

Mr D Jacobs: Suspension from office and withholding of remuneration
Mr D Jacobs, the Magistrate and Judicial Head of the District Court, Clocolan, had joined the Department of Justice and Constitutional Development on 20 January 1983 and was appointed as Magistrate on 14 June 1997. He had served the district of Clocolan as Magistrate since 1 January 1998.

Mr D Jacobs was charged with 12 counts of misconduct. He had allegedly absented himself on numerous occasions from the office without prior approval or leave, and, on numerous occasions, was intoxicated during office hours and unable to perform his official duties. He initially denied all the allegations against him but was prepared to make certain admissions. The inquiry commenced on 6 August 2010, continued on 22 September 2010, 6, 7, December 2010 and was concluded on 18 April 2011. Mr D Jacobs was legally represented throughout the inquiry. The inquiry had commenced in terms of regulation 26 (misconduct proceedings) of the Regulations, but was by mutual agreement between the parties terminated, when reports by Mr Jacob’s clinical psychologist were handed in, and after he testified to indicate Mr D Jacob’s incapacity to carry out his duties efficiently. The Ethics Committee of the Magistrate’s Commission had then approved commencement of an inquiry into Mr Jacob’s incapacity to carry out his duties efficiently in terms of Regulation 27 of the Regulations. Due process was followed. Both parties had agreed that the Presiding Officer in the misconduct inquiry should then be appointed to conduct the incapacity investigation.

Mr Meijer and Mr Louw summarised the evidence given by the clinical psychologist. Mr Jacobs had apparently suffered from post-traumatic stress disorder, which had gone untreated, and which resulted in him abusing alcohol. Mr Jacobs had now reached the stage where his brain had atrophied, and this could present various characteristics, including inconsequent behavior, inconsistency of judgment, a lack of insight, and memory problems. He did not believe that Mr Jacobs had the capacity to carry out the duties of magistrate any longer, and had recommended that he should be examined by a neurologist and a neuropsychologist. Based on this evidence, the MC had resolved, in terms of section 13(4)(a)(iii) of the Act, read with regulation 28(3)(b) of the Regulations, to recommend to the Minister of Justice and Constitutional Development that Mr D Jacobs be suspended from office on account of incapacity to carry out the duties of his office efficiently. It had also recommended the suspension of pay.

The Committee agreed with the recommendation of the Magistrates’ Commission.

Mr C M Dumani: Suspension of remuneration
Mr C Dumani, Magistrate at Graaff-Reinet, had been investigated by the MC on grounds of misconduct, and the MC had, on 26 August 2010, resolved to recommend that Mr Dumani be removed from office. However, he had immediately filed an urgent Notice of Motion in the Grahamstown High Court, interdicting and restraining the Magistrates’ Commission from taking any further action against him, pending another application that he would bring to have his conviction of misconduct reviewed and set aside.

The urgent application was not opposed, and the High Court granted the order in favour of Mr Dumani on 21 October 2010. However, on 12 August 2011 Mr Dumani’s application to review and set aside the Magistrates’ Commission findings of guilty on three charges of misconduct was dismissed with costs. Mr Dumani had subsequently lodged a Notice of Application for leave to appeal to the Supreme Court of Appeal.

The Magistrates’ Commission had resolved to write to the Minister so that the Magistrates’ Commission resolution to confirm the provisional suspension against Mr Dumani could be tabled in Parliament. Mr Dumani had indicated that if the application for his suspension was tabled, he would bring an application to interdict the Minister. However, the MC was of the view that, since the application did not cover the withholding of remuneration, it would be justified still in asking Parliament to consider the withholding of his remuneration until the application for removal from office was processed. Mr Dumani had been invited to show cause why this withholding of remuneration should not be considered by the Commission, but despite the initial letter, and a reminder on 2 September 2011, no response had been received.

The Committee agreed to withhold remuneration from Mr C M Dumani.

The meeting was adjourned.