Sheriffs Amendment Bill: Adoption; Magistrates Commission reports & requests for suspension of magistrates

NCOP Security and Justice

31 October 2012
Chairperson: Mr T Mofokeng (ANC, Free State)
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Meeting Summary

The Committee resolved to adopt the Sheriffs Amendment Bill.

The Magistrates Commission (MC) reported to the Committee on a number of issues. Four reports did not require any resolution from the Committee, and were for noting of progress only. Members took issue with the fact that the matters were long-outstanding, but it was explained that not only had this Committee only been able to assign a date for this update only now, despite the fact that the last reports were made in April, but that the magistrates had contributed to the delays by calling for postponements, or their Counsel failing to give dates for the set-down. For each of the matters of Mr Masinga, Mr Dumani, Mr Morake and Mr Rambau, a full summary was given of the position, as well as the dates for continuation of the inquiries.

The MC then reported on matters that required confirmation by the Committee, in terms of the relevant legislation. It was explained that once the MC, in a disciplinary inquiry, reached a finding that a magistrate should be removed, the Minister would have to file a Report to that effect in Parliament, and if this was confirmed by Parliament, the Minister would then remove the magistrate from office.

Mr Tyulu was found guilty of sexual harassment of a female accused who appeared before him, but four other instances of misconduct, including trying to borrow money from a witness in another matter, were noted. An ID Member took issue with the fact that this Committee did not know what had led Mr Tyulu to act in this way and would not like to see Parliament “contributing to the pain of his innocent children” by stopping his salary. The majority were in favour of confirming the suspension.

Ms Myles had, on numerous occasions since 2009, been absent from work because of severe depression, and since December 2011 she had not been in office at all, and was now failing to submit medical certificates. An independent service provider’s report had suggested that she was possibly fit to continue working, if she could be given a reduced workload, less stressful cases, and continue her psychotherapy. This was not practically possible, and her continued absence was negatively affecting service delivery, causing case backlogs and loss of confidence in the justice system. It had been suggested to her that she should request the Minister for permission to vacate office, but she was insistent that she was fit to work. Members felt that more information was needed before they take a final decision, and suggested that another medical opinion be obtained.

Ms Ndamase had been found guilty of 11 counts of misconduct, based on insubordination, acting in an inappropriate manner in court, disrespect to her superiors, failure to execute lawful orders and in summary a very poor attitude. She had refused to accept mentoring, blamed everyone but herself, showed no remorse, refused to accept any rulings, claiming bias, unfairness and racism, and had misled the inquiry in some respects on her situation. The MC recommended her removal from office in July 2012 and suspension of her salary, and although she was notified of her right to comment, she had failed to do so in the proper manner and within the time limits, and had also failed to carry through her threats to lodge review or appeal proceedings. An ANC Member refused to endorse this ruling, claiming that it could not be separated from claims of racism at the Pretoria court, despite the Chairperson’s point that they were separate issues, and insisted that the Committee must hold its own investigations. When he left the meeting, the Committee no longer had a quorum to make a decision.

Meeting report

Sheriffs Amendment Bill: Adoption

Mr Johan Labuschagne, Principal State Law Advisor, Department of Justice and Constitutional Development, was in attendance.

Members noted that there had been substantial presentations and deliberations on the Sheriffs Amendment Bill, and agreed to adopt the Bill.

The Committee Report recording the adoption was also adopted.

Magistrates Commission reports on suspension of magistrates
Mr Hans Meijer, Magistrates Commission, noted that there were four progress reports to present.

Mr M Masinga: Provisional Suspension
Mr Meijer noted that Mr Masinga was charged with attempted murder, was found guilty in the Regional Court and sentenced to ten years imprisonment. He was appealing against his conviction and sentence. The disciplinary inquiry by the Magistrates’ Commission (the Commission) was handled on 20 April 2012.  He had appointed an attorney, who was on record in June. Mr Masinga’s application for the presiding officer to recuse himself was turned down. Various in limine issues were turned down. The enquiry eventually commenced in the absence of Mr Masinga. The first witness (Mr Masinga’s wife) was cross-examined on 26 June. The enquiry continued in July. The attorney withdrew, and the matter was again postponed, with Mr Masinga opting to conduct his own defence. The matter proceeded again in August, but was then postponed to 1 and 2 October. The cross-examination had now been concluded. The matter would be proceeding on 8 and 9 November. Mr Masinga was not currently being paid a salary.

Mr D Joseph (DA, Western Cape) asked if the disciplinary charges were based on the court case. He also questioned whether this Committee could make a recommendation, since the matter was ongoing, and whether the Department would have to wait until the appeal was concluded.

Mr A Matila (ANC, Gauteng) commented that the dates now mentioned by Mr Meijer were not in the written report that Members received, which was dated April 2012. He asked why written updates were not given. The Committee had previously raised problems about the Regional Courts in Pretoria, and he was concerned on how this reflected upon the Magistrates Commission.

Mr D Bloem (ANC, Free State) noted that no recommendations were included on the Report.

Mr Meijer responded to Mr Joseph that there was ample case law that the Magistrates Commission (the Commission) need not await the outcome of a criminal matter before proceeding with a disciplinary inquiry, which was why it had reversed its previous decision to await the outcome of the criminal matter. That was why the Commission was now proceeding with its enquiry. This disciplinary matter was not based on the criminal action itself, although the Commission had the power to charge if a magistrate was found guilty of a criminal offence. In this case, Mr Masinga was charged with a breach of the Code of Conduct.

Mr Matila pointed out that the matter was brought before the Committee a year ago, and the Committee expected an update.

The Chairperson asked Mr Matila to hold his questions for the moment.

Mr Meijer continued that, in terms of the Act, the Commission had to file progress reports, and this presentation was an update on the progress. The first report was compiled in March, and was tabled in Parliament by the Minister on 29 March 2012. The Committee had only now given a date for the further progress reports to be presented. Only now did the Committee call for a further report. The Report did not contain a recommendation. The Commission was still busy with the inquiry. The presiding officer had had to deal with a number of legal issues before being able to proceed.

Mr Matila noted that this was a public document. If the public did not understand the latest issues, then the document was misleading.

Mr M Mokgobi (ANC, Limpopo) thought that regular updates should be given.

Mr M Makhubela (COPE, Limpopo) agreed, but said that Mr Masinga himself appeared to be recalcitrant and was delaying the issue.

The Chairperson reminded Members that the disciplinary process did not rest with the Committee.

Mr Bloem agreed and would propose that all the presentations be given. The Committee was not being asked to make a decision on the update reports.

Mr Matila agreed but felt, in relation to the issues raised that indicated disregard to the Committee. He asked if Mr Masinga was still being paid a salary.

The Chairperson said that this question had already been answered. He also reminded Members that in any matter, the Commission would come and give details on suspensions of salary.

Mr Meijer said that in terms of section 13 of the Act, the Commission must update Parliament on progress, and was not obliged to make a recommendation. The Committee must either take note of the points, or set it aside. He said that the Commission’s determination to withhold Mr Masinga’s remuneration was confirmed by Parliament.

Mr C M Dumani: Provisional Suspension
Mr Meijer said that Mr S Dumani was found guilty of misconduct, and the presiding officer recommended to the Commission that he be removed from office, as he was not a fit and proper person to hold office. The Minister was about to table the report in Parliament hen Mr Dumani filed an urgent application restricting the Minister until the matter was reviewed by the High Court. The High Court did so, and the application was set aside with costs. His leave to Appeal was refused. He then brought a petition for leave to appeal to the Supreme Court of Appeal was granted. At the moment he was provisionally suspended. The date for the hearing at the SCA was 23 November 2012. He was not being paid. The Minister would be asked to file a report after 23 November.

Mr I Morake: Provisional suspension
Mr Morake had been found guilty of theft in the Regional Court. He had appealed against the finding and sentence. The Commission charged him with breach of Regulation 25A but further charges were later added. His inquiry commenced in August 2010. The matter had been delayed by his changing attorneys, or terminating their instructions because he claimed that he was in dire financial straits. Despite his financial position, he now claimed to be intending to brief Senior Counsel, who would be paid by his sister, once she had managed to take out a bond on her property. The matter had been postponed by the presiding officer to 23 January 2013, and he had been notified that this would be the final date, by when he must brief Counsel. Whether or not he had legal representation on that date, the presiding officer would continue with the inquiry. On all other dates the witnesses had been available. His remuneration had been withheld.

Mr Makhubela said that he found it difficult to follow the reports.  He would have found it easier if the reports were gone through in more detail.

The Chairperson said that these reports were only for noting.

Mr Matila said that the matters were not placed before the Committee for the first time, and Members should know what was happening. For both Mr Morake, and Mr Dumani, he wanted to recommend that this Committee resolve now that if the appeals were not successful, they should be removed as magistrates.

Mr Meijer drew the distinction between the criminal proceedings and the disciplinary inquiry and said that they must be seen as separate issues. Both magistrates had been found guilty already by a court of law, and the disciplinary matters were in fact not dependent on the courts’ findings.

The Chairperson told Mr Matila that no recommendation could be made by the Committee until the inquiry proceedings had finalised and a ruling was given.

Mr T R Rambau: Provisional suspension
Mr Meijer reported that Mr Rambau had not attended the last inquiry session, and had filed a medical certificate excusing him, although he had been seen on that date in the local shopping centre. He was represented by Counsel, who was supposed to come back to the Commission with a date for trial, but Counsel failed to respond to the Commission, despite numerous reminders. The Commission was now approaching the Bar Council to report the failure to provide a date, and was intending to ask the Bar Council to ask Mr Rambau’s legal representative to do so. Mr Rambau was on provisional suspension but was still getting paid. 

Mr J Gunda (ID, Northern Cape) asked why the Commission mentioned the hearsay evidence of Mr Rambau having been seen elsewhere, and asked if it did not glean its own information.

Mr Meijer said that the Commission had got its own information, since a local attorney had been instructed by Mr Rambau that morning to hand in the certificate. However, a media report was later submitted to the Commission to the effect that Mr Rambau he was seen in a local shopping centre.

Mr Gunda said that a person could be ill, but may have been in the mall to purchase medicine. He asked why it was of concern to the Commission that Mr Rambau was getting paid.

Mr Joseph said that the point about the medical certificate needed to be looked into in more detail. However, more importantly, he asked who would recommend that the person continued to be paid a salary, and why there was no recommendation for suspension of salary.

Mr Matila noted that once again the matter was long-outstanding. He asked why it took the Commission such a long time to make recommendations. He thought this Committee should recommend that Mr Rambau’s salary should be withheld and let Mr Rambau challenge the Commission.

Mr Meijer addressed the time period firstly. He said that the doctor’s certificate was used in support of another application to postpone the matter. He agreed that many of the matters did take a long time to finalise. The Ethics Division had also asked Mr Rambau, one year earlier, to show cause why his remuneration should not be finalised. Mr Rambau’s answer was that since the case was not finalised, it would be unfair to penalize him in this way. He noted that all the correct procedures and fair administrative actions had to be followed by the Commission.

Mr V Manzini (DA, Mpumalanga) said that other magistrates were suspended without pay, where their cases were not finalised. He wondered why a different approach was taken here.

Mr Bloem noted that Mr Rambau had been paid from 4 November 2010. He urged that his salary be withheld.

Mr Matila agreed with Mr Bloem on the withholding of the salary.

Mr Joseph reminded Members that this report was put forward for noting only, not for a decision on the pay.

Mr Meijer said that he would take the question of the salary back to the Ethics Committee, which was due to sit on 26 November.

The Chairperson asked that the Commission liaise with the Committee Secretary with a report-back.

Mr Matila asked that in the next meeting with the Commission, the issues raised here should be discussed in depth. He again questioned the delay in bringing these matters to the Committee.

Mr Meijer said that these reports had been filed by the Commission in March 2012 with Parliament, but this was the first date that the Committee had given to the Commission to report. He asked if the Committee would prefer that three-monthly reports be submitted by the Minister to Parliament, or if it would prefer only the new reports to be filed. He also asked if the Members wanted a further written report in substantiation of the discussions this morning.

 The Chairperson agreed. He said that the Committee noted all the progress reports.

Report on Suspension from Office of Mr M Tyulu
Mr Andre Louw, Magistrates Commission, noted that Mr Tyulu, Additional Magistrate in Cape Town, had been charged with, and found guilty of, sexual harassment of a female accused who appeared before him. Mr Tyulu had elected to conduct his own defence. He was represented by an attorney only in respect of the sanction, and pleas in mitigation were made. However, in reaching a finding, the presiding officer took into account that Mr Tyulu was previously found guilty of four counts of misconduct – including approaching a member of the public who was waiting for the Domestic Violence Act hearing, and trying to borrow money from her, and three other civil debt matters. The presiding officer recommended his removal from office.

On 25 February 2012, the Executive Committee on the Commission considered the content of the inquiry report, and resolved to support the presiding officer’s recommendation to remove Mr Tyulu from office, as it believed his conduct was so serious as to render him unfit to hold office.

Mr Louw explained that once the Commission had made that recommendation, the Minister must suspend the magistrate. Mr Tyulu had therefore been suspended by the Minister on 8 June 2012. The Commission had also decided, on 21 July, to withhold remuneration until Parliament had passed the resolution confirming the Minister’s decision. The Minister had filed a Report, as required by the Act, and Members were now being asked to confirm, firstly, the suspension, and secondly, withholding remuneration.

The Chairperson noted that only one report had been received.

Mr Meijer informed him that the matter was tabled in Parliament on 2 August 2012, according to the ATC.

Copies were made and distributed to Members, so that they then had in front of them both a report on the suspension, and one on the remuneration. When this was done, Mr Louw summarised the details again.

Mr Gunda noted that the Minister had already signed to confirm the Commission’s decision, and wondered why this Committee was approached as it would rarely give a different view. He was very worried about the principles. He felt that the Committee did not know the real reasons that led a magistrate like Mr Tyulu to act in this way, and said that he did not want to be a party to suspending his salary and thus “contributing to the pain of their innocent children”. He believed that the Magistrates Commission should not follow a legalistic approach, and should look instead at the plight of the children of the magistrate being suspended. He did not agree with the Minister’s recommendation, because he thought it was not necessarily a case where the magistrate had knowingly been irresponsible.

Mr Bloem questioned whether the time requirements of the Rules were met, despite the delay from April to October.

The Chairperson read out the relevant rule.

Mr Meijer clarified again that the Minister was compelled to suspend the magistrate if there was a recommendation from the Commission to do so. He then had to table a report in Parliament. The Minister had been fully briefed with all documents before the Commission. The presiding officer, who was legally trained, would have had all relevant facts placed before him. In addition, Mr Tyulu had been legally represented. He pointed out that judicial officers, including magistrates, were appointed in terms of the Constitution, and were required to maintain very high standards of conduct. The Act and regulations around inquiries had been fully scrutinised by the Constitutional Court and were found to be consistent with the Constitution. The proper procedure had been followed. The Magistrates Commission had empathy with the position of the magistrates, but nonetheless had to be sensitive to the needs of the public. He noted that only about 1% of magistrates were subject to disciplinary action.

Mr Bloem agreed that magistrates were supposed to act in a responsible manner. It was wrong for a magistrate to demand favours from a member of the public who had hoped to seek assistance from the court.

Mr Manzini said that checks and balances must be applied. Members of Parliament and other public servants must act in an exemplary fashion. He noted Mr Gunda’s point but said that the needs for justice must also be taken into account.

Mr Matila said that if a criminal offence had been committed, an offender, even if he were the President, should not receive special treatment. There was no difference between ordinary criminals and this magistrate. It was not for this Committee to decide what made the magistrate act or think in this way. Judges and magistrates must uphold the law.

The Committee agreed to make the necessary recommendations to Parliament to suspend Mr Tyulu, and to suspend his remuneration.

Report on Suspension from office of Ms L Myles
Mr Louw noted that on 17 March 2012 the Ethics Committee ordered an investigation into the continued ill health and absence from office of Ms Myles, a magistrate in Upington. She had been plagued with depressive incidents on several occasions since 2009, and had not been at work at all since December 2011. After continued absences, she had been requested to submit a medical report from a medical practitioner of her choice, for assessment as to whether she was able to continue with her job. The various medical reports were submitted to PHS, an expert service provider of government.  PHS said that her mental state had been compromised, since 2009, by various episodes of severe depression, and it was noted that both her social and working environments contributed to her depression. PHS suggested that she might be fit to continue with her work. However, because of her previous medical history, it recommended that she should be accommodated with reduced workload and less stressful cases. PHS recommended that she should in the meantime also continue with psychotherapy and regular consultation with her physicians.

The Ethics Committee had taken note of those comments but faced various problems. Firstly, Ms Myers had been absent from duty for considerable time, and felt that, notwithstanding what PHS suggested, she no longer had the ability to carry out her duties efficiently. It was not quite a simple matter of giving her certain work only to do, as she would have to deal with whatever came to her court. She was informed of the opinion of the Ethics Committee and invited to submit comments. In January 2012, she responded, to the effect that the amount of sick leave she had taken was not unreasonable, because it was covered by medical certificates. She said that she was capable of long court hours, and capable of disposing of more work than her colleagues. She felt that other magistrates charged with actual crimes received better treatment than she did, and suggested that the inquiry was neither substantively nor procedurally fair.

The Ethics Committee considered her comments in February 2012. At that stage, she was still absent from office, and in fact from December 2011 to date, she had never returned to work, and at the moment was not even bothering to supply doctors certificates. PHS’s view that she should continue in work, with reduced caseloads and less stressful cases, was not really possible. The Acting Senior Magistrate informed the Ethics Committee that the heavy workload at Upington required versatile magistrates in all courts, and it would have been extremely difficult to accommodate PHS’s suggestion. Her continued absence was compromising quality of work at the court and effective and efficient service delivery. There were already over 1 300 outstanding cases, a situation not helped by Ms Myles’ continuing absence. She had previously been assigned to criminal matters and was unable to cope, and there was some suggestion that her work was not of outstanding quality. Her continued absence impacted on the workload of her colleagues and the public and stakeholders were losing trust in administration of justice at that court.

In July 2012 the Commission recommended that she be removed from office, due to her continued ill-health and absence, and the fact that the detrimental impact on service delivery could not longer be justified.

Mr Louw noted that although the report from PHS did not expressly say that Ms Myles was not fit to hold office, there was ample case law around the Labour Relations Act on similar points, although this Act did not apply specifically to magistrates, but the principle was the same. The Labour Appeal Court had confirmed that continued absence from office could be sufficient grounds for removal. She had been given ample opportunity to respond to all issues, and she had submitted lists of the factors that contributed to her stress, not all of which were work-related. At the moment, she was not being paid, because her sick-leave was exhausted. The Commission had tried to visit Ms Myles at home, to try to find a way out of the difficulties, but she had taken this very badly. The Commission had suggested that she should approach the Minister in terms of section 13 of the Act for permission to vacate office due to ill health. However, she still maintained that she was able to cope with the work-load and able to hold office, although she was not in the office, and this was seriously affecting the administration of justice.

Mr Gunda felt there must be some other way to assist her and felt that far more information was needed before confirming a suspension.

Mr Manzini thought this history was indicative of the fact that Ms Myles had a serious problem, and he did not think that she should remain in office. The Commission could perhaps recommend early retirement, so that at least she would be compensated. He felt it would be counter-productive to allow her to remain, when in fact she was never in office.

Mr Joseph noted the comments on the principles in the Labour Relations Act, and agreed with Mr Gunda that the process be reviewed. It was clear that she was suffering from severe depression, but there was also a contradiction between the reports received. There were numerous government departments that needed legal personnel, and he wondered whether alternative placements in government departments had been considered. This was not necessarily the Commission’s responsibility, but was a point to be considered. If she was not submitting medical certificates, then the Commission could charge her for her unauthorised absence. However, he would think it wise for the Commission to get another medical opinion. What Ms Myles had cited as problems contributing to her stress were not the result of a physical condition, but her life experiences.

Mr Matila said this was not the only instance raised by the Commission in which there had been disputes of fact. He felt that the Committee needed to hear Ms Myles’ side of the story. He agreed with suggestions to try to move her to an alternative position and would be reluctant to recommend removal at this stage.

Mr Makhubela wondered why these problems had not been isolated long ago, and agreed with Mr Joseph that another medical report was needed. He suggested that a panel be formed, including her own medical practitioner, to consider her fitness to work.

 Mr Bloem recommended that the Committee should not take a decision now. The Committee needed to consider the matter in more detail and would convey its decision to the Commission.

Mr Meijer confirmed that Ms Myles had taken an Oath of Office, so the Labour Relations Act did not apply to her. He reiterated that it was very difficult to give her a reduced workload. She would have to apply to the Minister for vacation of office for any reason, if she was booked off. There was a fine line between incapacity for ill health and incompetence. She had been requested to submit her own medical reports, and she had then also submitted her own set of facts. The Commission had believed that she was not fit to hold office, on the basis of several reports. There was a provision in the Regulations for absconding. The Commission could try that route, although it would be difficult if she were to challenge the Commission.

Mr Matila said that the Committee had already said it would make a decision later, and he took exception to what Mr Meijer had said, which he regarded as an attempt to persuade the Committee to take a certain direction.

Report on suspension of Magistrate N Ndamase
Ms Gail Pretorius, Magistrates Commission, noted that Ms Ndamase was originally charged with 42 counts of misconduct. One of the key witnesses on many of the counts had been a senior civil magistrate in Pretoria who, by the time the case was brought before the Commission, had retired due to ill health, so the matters where her evidence was crucial were withdrawn, leaving 27 charges. Eventually, Ms Ndamase was convicted of misconduct on 11 counts, and a lengthy and exhaustive judgment of 209 pages was given.

The basis of the ruling by the presiding officer was summarised. The points included the fact that Ms Ndamase showed complete disrespect to the chief magistrate, and senior magistrates, in all sections of the court. She had refused to execute lawful orders, failed to execute her duties competently, courteously and with self-control. She had thrown letters back at clerks, and was very difficult in all respects to work with. All three senior magistrates, the chief magistrate, and legal practitioners who had lodged complaints had indicated that they had tried to have their difficulties resolved amicably, but there had been such a severe breakdown in communication, as a result of Ms Ndamase’s attitude, that in the end she was refusing even to accept written communication from the chief magistrate. Her behaviour lacked dignity, courtesy and self-control. She was not reliable during the disciplinary hearing, suggesting things to witnesses that were not borne out by the documentation. Witnesses, during the hearings over which she presided, had made comments about her competency in the civil section, but when an attempt was made to move her back to the criminal section, she refused to go. She ended up deliberately filling out the criminal statistics on a civil statistics form, as a form of revenge against her perceptions of ill-treatment, which meant that the forms all had to be corrected by her supervisor. Even during the disciplinary hearing, the presiding officer had to call her to order on several occasions. She had blatantly refused to accept further mentoring. Right to the end of the disciplinary hearing, she blamed everyone except herself. She showed no remorse and did not accept any rulings, claiming bias, unfairness and racisms. The complaints had started in 2008. She claimed to have been experiencing health problems. She also claimed to be supporting three children – but it turned out that this was not entirely correct, as she was involved with two in a children’s home on a voluntary basis, and had no legal obligations towards them, and her own daughter was in her twenties.

The Magistrates Commission had, in July 2012, recommended that Ms Ndamase be removed from office. The report to this effect was tabled by the Minister on 2 August and she was suspended on 8 August. On 14 August she wrote to the Minister, without sending a copy to the Magistrates Commission, claiming that the audi alteram partem principle was not met during the hearings. Ms Pretorius assured the Committee that it was fully adhered to, and gave examples. There had been an application for the withholding of her remuneration. She acknowledged that she had received the letter, on 19 September, which required that she respond by no later than 26 September. She did respond, dating her letter 26 September, but only handed it in to the Chief Magistrate on 28 September at 4:15 pm. There had been no recommendation yet to the Magistrates Commission on the remuneration. She was offered the opportunity to make recommendations, but she simply repeated what she had said during the disciplinary inquiry.

Mr Matila said he had had the benefit of going to Pretoria, and had experienced the racist attitude of that Court, and seen collusion between the Commission and magistrates at that court. The Court had phoned the Chair of the Commission to try to ensure that Mr Matila did not get access, as the white magistrates had not wanted Parliament to see what was happening at that court.

The Chairperson asked Mr Matila to confine his remarks to Ms Ndamase’s position.

Mr Matila said that two other female magistrates had resigned because of the poor situation. The Head of the Court was an Indian, and management was white. Two temporary magistrates who had offered to meet him outside, because they would not be re-appointed if seen to speak with a Parliamentarian. He maintained that until the racist attitudes in Pretoria Magistrates Court were resolved, black magistrates would continue to suffer. Mr Matila had been told that the white magistrates in the civil court did not want Ms Ndamase to work there and she had been framed.

The Chairperson stopped Mr Matila again at this point. He noted that full documentation had been placed before the Committee, in relation to the charges and the procedure. Mr Matila’s allegations did not assist the Committee.

Mr Matila reminded the Committee that Ms Ndamase and other magistrates had written to the Committee months ago, pointing out the problems. He had previously asked the Magistrates Commission to resolve the matters in Pretoria Court. He felt that there was collusion between the Magistrates Commission and Head of the Court in Pretoria.

The Chairperson asked him to come to the point.

Mr Matila said the Committee was getting a one-sided viewpoint.

The Chairperson said that the allegations of racism at the court, and the case against Ms Ndamase, were two separate issues, and he again asked Mr Matila to confine himself to the Ndamase matter.

Mr Matila was adamant that the Ndamase case was based purely on the racism prevalent at the Pretoria Magistrate’s Court, and that was why black magistrates had a problem.

Mr Bloem proposed that the points raised by Mr Matila about the problems at the court would need to be flagged for further discussion and the Committee should possibly pay a visit to the Pretoria Court.

Mr Matila recommended that this case should not be decided upon now. The Committee needed to get Ms Ndamase’s version.

Ms Pretorius said that the issue of racism was comprehensively covered in the disciplinary enquiry and a full day was spent on points in limine
. Ms Ndamase had asked the presiding officers to recuse themselves, purely because they were white. She agreed that there was a history of tension in management at that court, but this was not based on racism. The loyalties in the office were divided. She also indicated that in fact management was not white; the chief magistrate was Indian person, the one female white senior magistrate did not testify, and the other two senior magistrates who did testify were black females. Coloured and white witnesses also testified. It was put to Ms Ndamase in cross-examination that she was the one who had the racist attitude and had made racist comments. She did not know the presiding officer, nor the officer presenting the evidence, but asked for their recusal purely on the basis that they were white and Afrikaans.

Ms Pretorius added that Ms Ndamase had delayed the matter considerably. She had demanded that the presiding officer withdraw charges, although there was no authority to do so, make applications for financial assistance to pursue the matter, appointed several attorneys who failed to attend the inquiry, and had threatened to make applications in terms of the Promotion of Access to Information Act (PAIA), although she was out of time. She also threatened to take side issues on review, and to approach the High Court, but had never done so. She said that she wanted to consult with her advocate, but, when asked to name this advocate who was representing her, said that it was God. She conducted her own defence.

Ms Pretorius answered Mr Matila’s points about the other black magistrates who had allegedly been fired. Ms Mfafu had elected to resign before she had been charged with misconduct. She again said that she would not deny that there were problems at the Pretoria Court, but it was not correct to ascribe these to racism. Mr Desmond Neer had given Ms Ndamase every opportunity to respond on every issue, orally and in writing, and it was in fact Ms Ndamase who had consistently refused to comment.

Mr Meijer added that Ms Mfafu had tendered her resignation four times, but had withdrawn it on three occasions. She had taken the Commission and Department of Justice to Court on several occasions, claiming unfair dismissal, but was unsuccessful in her claims.

Mr Manzini said that serious allegations had been made against Ms Ndamase, which brought into question her fitness to act as a magistrate.

Mr Gunda noted the numbers of years of service, and asked where Ms Ndamase was previously based, and whether there was any record of how she performed. He thought it was perhaps inconsistent that only now was her poor attitude being raised.

The Chairperson said the Magistrates Commission could not respond on whether her actions were out of character.

Ms Pretorius clarified that she was eventually found guilty on eleven counts of insubordination. Ms Ndamase was formerly in the courts in the former Transkei, and had worked in Johannesburg. It was at her own request that she was transferred to Pretoria, and she stated that she wanted to go to the civil court not to further her own knowledge or experience, but to ensure that transformation happened. Most of the proceedings in the civil court were in Afrikaans, and she was specifically asked whether she had ever found this to her disadvantage, to which she responded that it was not a problem.

Ms Pretorius added that, although this did not form part of the enquiry, after it had been finalised another complaint was lodged that she had addressed a party to the proceedings directly from the Bench, refusing to translate her remarks for the party’s legal representative. There was quite a history of poor attitude.

Mr Gunda said his question was directed to her work ethics. Over the last fifteen years, she must have had a good history, otherwise she would not have remained on the Bench.

The Chairperson pointed out that the good side was not brought before the Commission.

Mr Matila said that all black magistrates at the Pretoria court had cited problems with a white female senior magistrate, who had ensured that no black magistrate was placed on civil cases.

The Chairperson stopped Mr Matila, saying that Ms Ndamase had been in the civil court, and this was not what had been said by the Commission.

Mr Matila pointed out that Ms Ndamase had requested a transfer precisely because transformation had not happened in the civil section. He thought that this case had been built up to frustrate Ms Ndamase. He wanted to put on record that the Magistrates Commission was incorrect and she had been made a victim of the situation. The Head of the Court could be seen as part of the Commission, as he had dealt with other cases in other courts. Mr Matila reiterated that he had a lot of information on the white magistrates. He recommended that the proposal for Ms Ndamase’s removal not be endorsed.

The Chairperson said that the allegations of racism would remain, but the point to consider was whether the disciplinary proceedings were correctly conducted. The Minister had already suspended her.

Mr Matila was not happy to concur with this, until such time as the Committee had gone to Pretoria to investigate the racism.

The Chairperson reminded Mr Matila that he had earlier requested that these issues be separated. The Committee’s decision on the suspension was quite separate from any investigation into the allegations of racism.

Mr Matila said he wanted to dispute the guilty finding against Ms Ndamase on the basis of the racism of the court.

The Chairperson reminded him that this was not the responsibility of the Committee.

Mr Matila said that Gauteng would refuse to vote on this until the Pretoria Court matter was properly investigated.

 Mr Joseph asked if Ms Ndamase had appealed the decision.

Ms Pretorius said that Ms Ndamase had the right, constitutionally, to take the matter on appeal, and had continuously threatened to do so, although she had not proceeded.

Mr Joseph asked when the findings were made.

Mr Pretorius responded that she was convicted on 17 April and it was endorsed by the Minister on 2 May 2012. From the outset, Ms Ndamase could have, but did not, exercise any rights under the Promotion of Administrative Justice Act.

Mr Gunda asked when the time expired for review or appeal.

Mr Meijer said that once the Commission had made a recommendation that the Minister suspend, the Minister must do so. She could have filed an application to interdict the Minister, but had not, so the suspension still stood. It was now for Parliament to confirm the suspension, and if it did so, the Minister would formally remove her from office, in writing, giving effect to the resolution passed by Parliament. He said that the presenters were not part of the Magistrates Commission, nor of the decision-making process. The Commission was presided over by a judge, and had representation from other people, including Parliamentarians, and was well-representative of the communities.

Mr Gunda thought that the Committee needed to discuss the issues further. 

The Chairperson noted that, since Mr Matila had now left the meeting, there was no longer a quorum to take a decision on the matter.

The meeting was adjourned.


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