Suspension of Magistrates: briefing by Magistrate Commission

Meeting report

The Chairperson requested that the members of the Magistrates Commission (MC) brief the Committee.

Mr Hans Meijer, Magistrate from the MC, said that there were four progress reports in the form of provisional suspensions of magistrates.

Provisional Suspension of a Magistrate: Mr C Dumani
Mr Meijer said that Mr Dumani was found guilty of misconduct. The presiding officer recommended that he be removed from office; this was endorsed by the MC. The Minister of Justice and Constitutional Development was in the process of suspending Mr Dumani when he filed an urgent application in the High Court which interdicted the Minister from taking any further action against him pending another application for a review of the decision to have him removed from office. The review application was dismissed with costs. Mr Dumani applied for leave to appeal and this was turned down. He was later granted leave to appeal by the Supreme Court of Appeal (SCA). A date for the appeal might be sent at the end of September or beginning of October. Mr Dumani was not receiving remuneration and he was still provisionally suspended.

Provisional Suspension of a Magistrate: Mr M Masinga
Mr Andre Louw, Magistrate from the MC, said that Mr Masinga had appeared before the Durban Magistrate’s Court for contravening the Domestic Violence Act. The criminal proceedings had been initially remanded. Some of the remands included one on the 20^th of April 2012 where Mr Masinga presented a letter from his attorney who was not going to be available. The matter was postponed to 26 June 2012. Mr Masinga had a new attorney and there was an application for recusal of the presiding officer which was dismissed. On 27 June 2012 the matter was postponed to 23 Mr and 24 of July 2012. On the 23 of July Mr Masinga’s attorney requested an inspection in loco, the matter was again postponed to 24 July 2012. The process was still ongoing at this stage.

Provisional Suspension of a Magistrate: Mr I Morake
Mr Meijer said that Mr Morake was guilty of two counts of theft and was sentenced to four years in prison. He has appealed the decision. A disciplinary hearing was instituted where several charges were laid against Mr Morake who has sought legal representation and intended to brief Senior Counsel. The misconduct inquiry has been set for next week Tuesday and Wednesday.

Provisional Suspension of a Magistrate: Mr T Rambau
Mr Meijer said that the inquiry had already commenced, the criminal trial was still pending. On 20 June 2011 there was a request from Mr Rambau’s attorney for a postponement of the disciplinary inquiry following the outcome of the criminal trial. The postponement was granted. At the following trial both Mr Rambau and his attorney were not present; he submitted a medical certificate stating that he was unfit for work due to an illness. The MC had been trying to get hold of his counsel as it could not directly approach Mr Rambau. A date was still to be determined as the MC had to go to Polokwane in chambers to approach Mr Rambau’s attorney in order to set the date. This matter was being delayed; Mr Rambau was suspended from office but not without remuneration. The Ethics Committee had been requested to recommend to the MC to determine to withhold remuneration but this was turned down as Mr Rambau has not been convicted as yet. This matter was long overdue and the inquiry had to be held.

Discussion
Ms D Schäfer (DA) said that she was pleased that the MC had decided to stop waiting for processes in courts that involved magistrates to conclude before instituting their own disciplinary inquiries. In Mr Rambau’s case, a date should be set and the lawyer must be informed via email or a posted letter.

Ms C Philane-Maajake (ANC) asked which magistrates were suspended with full pay and which ones were not.

Mr Meijer said that Mr Dumani, Mr Masinga and Mr Morake were all provisionally suspended without remuneration, only Mr Rambau was still receiving his salary. It was difficult to get hold of Mr Rambau’s attorney, he only provided a cell phone number and he refused to provide more contact details. The Bar would have to be approached.

The Chairperson agreed and said that a letter should be written by the MC to the Bar and Ms Schäfer should also get a copy and the letter should be made public.

Mr Meijer said that Mr Rambau’s lawyer had said that he was always busy with murder cases. The Committee would recall that Mr Rambau was the presiding officer that had taken a bribe and together with the prosecutor and attorney tried to pre-determine the outcome of a matter. In the criminal trial the state’s case had been finalised and concluded. The attorney had been struck from the role; he was now a captain in the army and has requested to be assisted by legal aid. The request was turned down and has since been taken on appeal.

Suspension of Magistrate: Ms N Ndamase
Ms Gail Pretorius, Magistrate from the MC, said that Ms Ndamase was convicted on 17 April 2012 on eleven counts of misconduct which included refusals to execute lawful orders. There were originally 42 counts against Ms Ndamase but they were later reduced to 27 because one of the key witnesses took early retirement due to ill health. Ms Ndamase has been suspended and the Minister signed the suspension on 30 July 2012. The current motion was for her to be removed from office. This was a very lengthy trial and the presiding officer had stated that Ms Ndamase had showed total disrespect for her judicial superiors. There had been an utter and complete breakdown of any form of communication between Ms Ndamasa and the chief magistrate. Ms Ndamasa did not want to receive any form of communication from the office of the Chief Magistrate. The judgment in the disciplinary case was 209 pages and it was very objective.

Discussion
The Chairperson said that the Committee was in possession of a document from Magistrate Ndamase detailing her intention of applying to the High Court for a review.

Ms Pretorius said that the Commission was aware of her intention to do so.

Ms Schäfer said that in the letter to the Minister, Ms Ndamase said that she had not been furnished with reasons, what was the Commission’s normal process in this regard?

Ms Pretorius replied that there were no reasons because Ms Ndamasa was present during the delivery of the judgment. There were no provisions for any further reasons, she had the opportunity to respond to the judgment which she did. The presiding officer had replied to that and due process was followed.

Ms Schäfer asked if the Department was confident of the review proceedings.

Ms Pretorius replied yes.

Mr J Sibanyoni (ANC) said that he picked up from the letters written by Ms Ndamase that she spoke of ‘victimisation’ and the use of Afrikaans at the Pretoria Magistrates. To what extent was the dominance of Afrikaans at the Pretoria Magistrate’s Court a shortcoming for her? When Ms Ndamasa used isiXhosa during proceedings, was it not a form of protest as it was also an official language?

Ms Pretorius said that issues must not be confused as the isiXhosa issue was after the institution of a disciplinary inquiry. The official languages of the courts were in either English or Afrikaans and then interpreters were used for witnesses. On this issue she cross-examined Ms Ndamasa and it was her point of view that her lack of fluency in Afrikaans was not a drawback for her. During cross-examination Ms Ndamasa was adamant that Afrikaans was not a drawback.

Mr J Jeffery (ANC) asked if the MC informed Ms Ndamase about its decision, if so where was the letter?

Ms Pretorius asked from which process a letter informing Ms Ndamase of the outcome would have come.

Mr Jeffery said that the MC was tasked with the decision of whether or not to remove Ms Ndamase.

Ms Pretorius said that on 6 June the Ethics Committee sat and agreed with the recommendations of the presiding officer. On 21 July 2012 the full Commission sat and they also approved the decision.

Mr Jeffery asked where the documentation for this process was. The hearing was the first part, and then the parties were given an opportunity to make an input which was considered by the Ethics Committee and then also Commission. When Ms Ndamase mentioned in her letter to the Minister that she was not furnished with reasons, did she receive a letter from the Commission informing her of the reasons. Where was this letter? The Committee only had a letter from the Commission to the Minister.

Mr Meijer said that a letter was drafted and submitted to Ms Ndamase.

Mr Jeffery said that this was the day after she had written a letter to the Minister.

Mr Meijer said that the Commission did not receive the letter.

Mr Jeffery said that from the response it seemed that the Commission did receive the letter. If the Commission wrote to the Minister on 23 July 2012, why did it not do the same for Ms Ndamase?

Mr Meijer said that there was a letter written by Ms Ndamase on 14 August 2012, the letter was responded to by the Commission on 15 August 2012.

Mr Jeffery said that Ms Ndamase had responded and put forward an alternative case on the sentencing, where was the response.

Ms Pretorius said that the Magistrates Act and Regulations did not make provision for a further process. Ms Ndamase knew what the reasons were throughout the process.

Mr Jeffery responded that the Regulations allowed for submissions, presumably one would make submissions with the expectation that they would be considered.

Ms Pretorius said that it was the presiding officer who would consider the submissions at the disciplinary inquiry.

Mr Jeffery asked if the Ethics Committee considered these submissions form Ms Ndamasa and the presiding officer.

Ms Pretorius said that they did.

Mr Jeffery said that the Commission had applied its mind, where was the record of its decision? The next process was where the submissions were forwarded to the full Commission, which also applied its mind, where was the record of their decision? Where was the letter from the Commission to Ms Ndamase? The concern was that even though the reasons were in the judgment, this was not the end of the process; the matter was still to be considered by two other bodies. Surely Ms Ndamase was entitled to a decision with reasons.

Ms Schäfer said that this had been done though.

Mr Jeffery said that the difficulty was that there was another body that applied its mind and its decision with reasons was not communicated to Ms Ndamase.

Ms Schäfer said that this was done on 15 August 201

Mr Jeffery said that this was an afterthought. It did not look very good, why did the Commission not write to the Minister and Ms Ndamase at the same time?

Ms Pretorius said that during the course of the trial Ms Ndamasa was informed and aware of what was happening; “one was not dealing with a legal lay person”.

Mr Jeffery said that he did not have a problem with what happened during the hearing, it was what happened afterwards that was of concern. Could the Commission address the Committee on this point?

Ms Pretorius said that as far as she knew one did not normally follow the course suggested as the next step was to apply for a suspension.

Mr Jeffery said that in terms of administrative justice it was self evident that if one was afforded the opportunity to make representations for somebody to consider and a decision to be taken, then they had a right to receive communication of that decision and the reasons for it.

Ms Pretorius said that the Act.

Mr Jeffery interrupted and said that he was referring to the Constitution which Ms Pretorius would know was supreme.

Ms Pretorius said that she was aware of the Constitution but the Act did not provide for this and there was no need for the decision and reasons to be furnished because Ms Ndamase knew what was going on.

Mr Jeffery asked how she could be aware if she did not know what the Commission’s response to her representation was. This was basic principles of administrative law, not the Magistrates Act which was before the advent of the Constitution.

Ms Pretorius said that for the record Ms Ndamase was not informed after the conclusion of the process on 21 July 2012 but she was informed on 15 August 2012.
Mr Jeffery said that he resented the statement made in a patronising tone that Ms Ndamase was not entitled to being informed of the decision. It was self evident that when the Commission made a decision and informed the Minister then the accused had to be informed as well. When was Ms Ndamase suspended as she alleged in the letter.

Mr Meijer said that Ms Ndamasa was provisionally suspended but this was reversed as the provisional suspension was not confirmed by Parliament. Now the Minister had to be suspended her if there was a recommendation from removal of office from the Commission.

Mr Jeffery asked why the Committee did not receive a letter from the Minister on this.

The Chairperson said that the question had to be posed to the Minister.

Ms Philane-Majaake said that it sounded like the process was flawed, with the Constitution always lurking in the background processes had to be run in a compliant manner. The dismissal of a person was serious as this was a labour matter. Reasons always had to be furnished to the affected person. What was the Commission doing in terms of looking at issues of transformation?

Prof G Ndabandaba (ANC) asked if Ndamase had any smattering of Afrikaans, if she did what was done to improve it?

Ms Schäfer said that there seemed to be confusion in the Committee on issues that did not have a direct bearing on this matter. The process was not flawed however Mr Jeffery’s point was valid. Ms Ndamasa was clearly problematic as a judicial officer. Transformation was high on the priority list of the MC; it was constantly being attended to. Transformation was not about doing as you please and then raising racial claims and transformation issues as a means to get away with misconduct.

Mr Meijer said that this was not a labour matter as pointed out by Ms Philane-Majaake; magistrates were not ordinary employees in terms of the Constitution and the Van Rooyen judgment. Magistrates were independent public officer bearers and judicial officers.

Ms Pretorius responded to Prof Ndabandaba’s question and said that during cross examination Ms Ndamase had said that a lot of black attorney’s had appeared before her and Afrikaans was not a problem as a lot of freelance interpreters were also used.

Withholding of Remuneration: Mr M Tyulu; Removal from Office of a Magistrate: Mr M Tyulu
Mr Louw said that the next matter was that of Mr Tyulu in respect of removal and withholding of remuneration. Mr Tyulu was charged with two counts of misconduct, he denied the charges and was found guilty of one of the charges which was sexual harassment involving a female accused person appearing before him in a pending criminal case. The presiding officer in the misconduct hearing recommended that Mr Tyulu be removed from office on 11 October 2012. The presiding officer took into account that Mr Tyulu had been found guilty of misconduct previously where he was severely reprimanded. Mr Tyulu argued that alternative sanctions set out in the Regulations other than the sentence of removal should have been applied. The Commission was of the view that his conduct warranted removal from office and that he was unfit to serve as a magistrate. Having considered the recommendation from the Commission the Minister of Justice suspended Mr Tyulu from office and tabled this before parliament. Mr Tyulu’s legal representative was invited to show cause as to why the withholding of remuneration should not be initiated, this was done and the Commission’s decision was to withhold remuneration in terms of the Act. The Commission was of the view that there was no reason why a suspended magistrate should continue to receive remuneration during the period of suspension prior to removal. 

Discussion
The Chairperson said that Mr Tyulu planned to approach the High Court for relief. Were all the steps followed?

Mr Louw said yes and this would be double checked again.

Mr Meijer said that Mr Tyulu’s attorney was informed of the decision by way of a fax.

The Chairperson asked if this was done immediately.

Mr Meijer said yes.

Suspension from Office of Magistrate: Ms L Myles
Mr Meijer said that this was the first time that the Commission had made a decision to remove a magistrate from office due to ill health. There has been a lot of correspondence on what has been a lengthy process. The MC had received a complaint from the Chief Magistrate in Kimberley about Ms Myles continued ill health and absence from office. The MC conducted an investigation and Ms Myles was informed. Ms Myles submitted a medical report from an independent doctor of her choice and herself. The medical reports had indicated that Ms Myles’ mental state had been severely compromised as a result of a major depressive episode in April 2009. It was also mentioned in the medical report that her working environment had contributed to the deterioration of her condition as well as other social stresses. She was however found to be fit to continue with work however it was recommended that where possible she should be accommodated by being given less stressful work and cases. Her attendance record indicated that she had been absent from work for long periods with full pay for example since November 2004 she was absent from office on sick leave for 460 days and 141 days with health pay.

The Ethics Committee having considered the medical reports formed the opinion that she was no longer fit to continue and informed her accordingly. The medical reports were also submitted to her. Ms Myles submitted that her sick leave was not unreasonable as it was covered by medical certificates. She submitted that her record showed that she had no problems with the work and had produced longer court hours and disposed of more matters than her colleagues. She also contended that the manner in which her disciplinary inquiry was conducted was not substantively or procedurally fair.  The matter was then referred to the Executive Committee which was of the view that the expert opinion did not support the removal from office of Ms Myles. The cluster head after consultation with the head of office in the Upington areas said that the heavy workload required dedicated versatile and hard working magistrates able to cross-handle civil and criminal matters. He concluded that there was no less stressful environment in which Ms Myles could be placed. The continued absence of Ms Myles hampered service delivery and the cluster head supported her removal from office. The head of office was of the opinion that Ms Myles could be allocated to Court C where she could deal with the postponement of cases and bail applications. The head of office said that her work was not of a poor quality. Since18 July 2012 Ms Myles has not reported for work and has also failed to submit medical certificates since then. The Commission recommended her removal from office and the Minister has since suspended her.

Discussion
The Chairperson asked what was wrong with Ms Myles.

Mr Meijer said that it was major depressive disorders, post traumatic stress and family related issues such as the passing away of her mother.

The Chairperson asked if the submission from Pro-active Health Solutions (PHS) was considered.

Mr Meijer replied yes.

Mr Jeffery asked what the consequences were for removal from office on the basis of ill health.

Mr Meijer said that this would be like a resignation.

Mr Jeffery asked what one would get in terms of medical boarding.

Mr Meijer said that Ms Myles was asked to request medical boarding from the Minister but she refused. Ms Myles was of the view that she was fit to continue with her work.

Mr Jeffery asked how Ms Myles could apply for boarding if she was unable to apply due to a mental condition of sorts for example.

Mr Meijer said that a family member might apply on her behalf.

Mr Jeffery said that one of the features of motivation was that people did not want to do anything which might explain why there were no medical certificates and she was still absent from work. The MC was not particularly human on this one. There should be a provision for the Department to able to apply for boarding and not a family member.

Ms Pretorius said that Ms Myles was not prepared to acknowledge that she had a medical problem to the extent that it was affecting her work. She did not want to apply for medical boarding yet still wanted to remain on the payroll without coming to work. It was the community that was suffering at the end of the day due to poor service delivery as a result of this. The Commission was in a catch 22 situation.

Ms Philane-Majaake said that the problem was that Ms Myles was not acknowledging her problem.

Ms Schäfer said that the MC should go back to Ms Myles and request that she apply for medical boarding herself otherwise she would lose her job as the matter was before Parliament who also held the view that she was no longer fit to continue.

Mr Meijer said that the MC has undertaken this route and Ms Myles was still adamant that she was able to continue with work. The MC has tried, it even visited her personally at her home and she held this against the Commission.

Mr Jeffery referred to Regulation 29 and said that the report from PHS did not recommend removal, was this not a problem.

Mr Meijer said that PHS had recommended that she be given less stressful work and the chief magistrate had said that there was no way that a magistrate could be given less stressful work.

Mr Jeffery said that PHS had said this would be a preference.

The Chairperson asked if there was a report from an expert stating that Ms Myles was not fit to work.

The Committee said no.

The Chairperson said that this was a problem.

Mr Meijer said that Ms Myles was requested to submit a report from her own physician or psychiatrist and then thereafter there the Commission requested PHS to have an independent evaluation. Ms Myles was adamant that she did not suffer from any depression.

Mr Jeffery said that the PHS report was that the PHS report said that Ms Myles was fit enough for work and that where possible Ms Myles should be accommodated.

Mr Meijer said that PHS had also recommended that Ms Myles should have regular clinical and regular psychotherapy and regular sessions with a psychiatrist. Ms Myles has not been doing this.

Ms Schäfer said that the MC has tried to assist her however if the medical report did not substantiate her  not being able to work on medical grounds then surely the MC should proceed under normal provisions for not working.

Ms Pretorius said that Regulation 27 which dealt with capacity could be an alternative.

Mr Meijer said that even if Regulation 27 was used she would still lose her job. The only other alternative would be for the Committee to not adopt the report, refer it back to the Commission which would then once again try to convince her to approach the Minister in terms of Regulation 30.

Ms Philane-Majaake said that the Regulation 30 route would be more sympathetic.

Mr Jeffery said that Regulation 29 impliedly raised that the medical report should recommend removal due to ill health. The Commission should check whether the Department could apply for boarding as opposed to the person or their family.

Mr Meijer said that Regulation 29 was for when the Commission may order an investigation be held regarding a removal from office due to continued ill health.

Mr Jeffery said that the effect was the same as a dismissal. The Department should get an opinion from the state law advisers as to whether the correct procedure was followed.

The Committee agreed.

Meeting Adjourned.