Suspension of Magistrates: Progress Report and Briefing by the Magistrates Commission

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Justice and Correctional Services

26 February 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Magistrates Commission reported on disciplinary matters of eight Magistrates. The Commission informed Members that Magistrate M T Masinga, in March 2009 appeared in the Durban Magistrate’s Court on the allegation that he assaulted his wife with a blunt axe and also his daughters. On 16 January 2012 he was sentenced to ten years imprisonment. He appealed against his conviction and sentence - his appeal was still pending. On 08 February 2010 the Commission charged Magistrate Masinga with three counts of misconduct. Masinga had employed various delay tactics to stall the hearings. Masinga was not receiving any remuneration - he was provisionally suspended from office.

The Minister, on the advice of the Commission, provisionally suspended Magistrate Morake from office with effect from 4 November 2010. On 13 July 2007, Morake had appeared in the Lichtenburg District Court on three charges of theft. After a series of postponements, Morake was sentenced to four years imprisonment on each count: the sentences were to run concurrently. The inquiry into Morake’s alleged misconduct commenced on 11 April 2011. Morake’s representative requested the Presiding Officer postpone the disciplinary proceedings against Morake, pending when the appeal against his conviction once a sentence had been imposed. The Presiding Officer granted a postponement until 24 June 2011 provided that Morake submit proof that he had filed an appeal against his criminal conviction of theft. The appeal had not been filed yet because both parties were experiencing difficulty in having the record of proceedings reconstructed. Tapes and CD’s, containing the criminal trial proceedings were missing. The Presiding Officer in the misconduct inquiry therefore ordered the disciplinary hearing to proceed on the actus reus concerning the allegations of theft. This implied that the charge of misconduct had to be amended or replaced. Morake was currently not receiving any remuneration whilst the misconduct inquiry was proceeding against him.

On the advice of the Commission, the Minister provisionally suspended Magistrate Rambau from office with effect from 4 November 2010 which suspension was confirmed by both Houses of Parliament on 18 and 24 November 2010 respectively. It was alleged that Rambau, the prosecutor and the attorney arranged the outcome of a trial by pre-determining the sentence for financial reward. Rambau and his co-accused appeared in the Musina District Court on 8 February 2010 on charges of corruption. The criminal case had been postponed several times. A written notice containing the allegations concerned (a charge of misconduct) dated 17 November 2010 was served on Rambau. At the misconduct inquiry, which was set down for 9 February 2011, Rambau requested the Presiding Officer to postpone the inquiry until the criminal case against him had been finalised since the criminal charge(s) preferred against him formed the basis of the disciplinary proceedings against him. The Presiding Officer postponed the misconduct inquiry to 8 April. Further requests for postponements were requested and granted. Neither Rambau nor his Counsel was present at the last occasion. Rambau submitted a medical certificate indicating that he was unfit for work, due to diabetes mellitus. Contact had eventually been made with Rambau’s Counsel.  A date for the continuation of the inquiry was to be set soon.

The Minister, on the advice of the Commission, provisionally suspended Magistrate Dumani from office with effect from 16 September 2009. Dumani was charged with four counts of misconduct - he denied all the allegations against him. At the conclusion of the misconduct inquiry he was found guilty of three of the four charges of sexual harassment charges against female clerks at the Graaff-Reinet Magistrate’s Office. The Commission commenced leading evidence at the inquiry on 5 August 2009. On 24 May 2010 the Presiding Officer at the misconduct inquiry recommended that Dumani be removed from office. Having considered his representations, the Commission resolved to support the recommendation that Dumani be removed from office on grounds of misconduct. On 16 August 2011 the Commission invited Dumani to show cause why his remuneration should not be withheld; the Commission determined to do so at its meeting held in September 2011. The Magistrates Commission was of the view that the Minister’s decision to suspend Dumani, taken on 15 September 2011, still stood and that there was no reason why Parliament could not finally consider the report and pass a resolution that Dumani not be restored to the office of Magistrate.

Magistrate Ntuli’s case was a new matter before the Commission.
The Chief Magistrate of Port Elizabeth informed the Commission that Ntuli was arrested on Friday 17 August 2012 on a charge of drunken driving. He was subsequently charged with misconduct, found guilty and on 8 July 2009 strongly reprimanded by the Presiding Officer to refrain from any similar misconduct in future. The Commission was of the view that the existing evidence against Ntuli was of such a serious nature as to make it inappropriate for him to perform the functions of a magistrate while the allegations were being investigated. The Minister had approved Ntuli’s provisional suspension.

The Commission reported to the Committee that Magistrate Mokone had died in a motor accident and hence, the basis for which she was suspended fell away. In this regard, the Minister had revoked the report recommending her suspension and it was desired that the Parliament did the same.

The Committee had, upon the recommendation by the Commission in its meeting of 21 August 2012 that Magistrate L Myles be removed from office on account of her continued ill health, requested that the Department furnish the Committee with a legal opinion from the State Law Advisers as to whether the Commission had followed the correct procedure in its recommendation. This opinion had been furnished to the Committee. It was the view of the Commission that Magistrate Myles be removed from office on the basis of her ill-health.


The Commission resolved at its meeting on 20 and 21 July 2012 to recommend that Magistrate Ndamase be removed from office on the ground of eleven counts of misconduct in terms of section 13(4)(a)(i) of the Magistrates Act. Having considered Ndamase`s representations, the Commission at its last meeting determined to withhold Ndamase`s remuneration. The Commission was of the view that the withholding of Ndamase`s remuneration, pending the consideration by Parliament of a recommendation by the Magistrates Commission for her removal from office, was justified.

Members decried the embarrassing conduct of Masinga. He was a Magistrate, yet had to get trade unions to represent him and had consistently employed underhand tactics to delay the trial - it was essential the Presiding Officer took a definite stand and stopped the delays. Members asked if any investigation had been conducted by the Commission into the disappearance of the contents of the dockets and records of Morake’s trial. Members remarked that while the Committee sympathised with the workload of the Commission, a very bad impression about its handling of serious cases had been created and needed to be rectified. Members suggested that the Committee make a recommendation to the Commission that Rambau’s remuneration be suspended immediately. The Committee unanimously moved the motion that Dumani should not be reinstated. Members decried the light sentence of a reprimand handed down to Ntuli on the charge of drunken driving. The Committee approved the Minister’s recommendations to suspend Ntuli. The Committee unanimously recommended that Magistrate L Myles should not be restored to office.

Meeting report

Magistrate Andre Louw, Magistrate, Magistrates Commission, explained that by virtue of Section 13(3)(f) of the Magistrates Act, No. 90 of 1993, the Magistrates Commission must ensure a report – on the progress made in respect of inquiries against Magistrates who had been provisionally suspended from office – was submitted to Parlia­ment every three months.

Progress Report on Provisional Suspension from Office of Magistrate M T Masinga
Magistrate Masinga in March 2009 appeared in the Durban Magistrate’s Court on the allegation that he assaulted his wife with a blunt axe and also assaulted his daughters. The criminal case was postponed on various occasions at the request of the defence. An application by Masinga for the recusal of the Presiding Officer was later abandoned. The State closed its case on 24 February 2011. Masinga was convicted on a charge of attempted murder on 23 May 2011. On 16 January 2012 he was sentenced to ten (10) years imprisonment. He appealed against his conviction and sentence - his appeal was still pending.  On 08 February 2010 the Commission charged Masinga with three (3) counts of misconduct. A notice in terms of Section 13(3) (e) containing the allegations against him, was served. The National Education Health and Allied Workers Union (NEHAWU) informed the Commission in a letter received on 02 March 2010 that it acted on behalf of Masinga. NEHAWU requested the Commission to com­mu­­nicate directly with it regarding the disciplinary matter. Between February 2010 and October 2011, Masinga had employed various delay tactics to stall the hearings (see document). On 31 October 2011 Masinga indicated that he considered resigning. The inquiry was kept in abeyance until the next day. Witnesses for the Commission were all present. On 1 November 2011 Masinga opted not to tender his resignation. His attorney of record withdrew. Masinga requested a postponement to again approach Cosatu/NEHAWU for representation. This was followed by further requests for postponements and delay tactics from Masinga (see document). Masinga’s attorneys withdrew and he decided to conduct his defence himself. On 1 August 2012 he commenced with cross-examining the witnesses for the Commission who had already testified in his absence. The inquiry was postponed on various occasions for this purpose. Masinga was still in the process of cross-examining the second witness. The matter had been remanded to 1 February 2013. Masinga was not receiving any remuneration - he was provisionally suspended from office.

Progress Report on Provisional Suspension from Office of Magistrate I W Morake
Magistrate Hans Meijer, Magistrate, Magistrates Commission, informed the Committee that the Minister, on the advice of the Commission, provisionally suspended Magistrate Morake from office with effect from 4 November 2010, which suspension was confirmed by both Houses of Parliament on 18 and 24 November 2010 respectively. Morake was the Magistrate and Judicial Head at Lichtenburg. Several complaints were lodged with the Magistrates Commission against Morake. On 13 July 2007, Morake appeared in the Lichtenburg District Court on three charges of theft. After series of postponement, Morake was sentenced to 4 years imprisonment on each count in terms of Section 276(i) of the Criminal Procedure Act. The sentences were to run concurrently (see document). 

The Commission charged Morake with several counts of misconduct which were contained in a charge sheet served on Morake on 29 December 2010. A notice of hearing was served on Morake. The inquiry into Morake’s alleged misconduct commenced on 11 April 2011. Morake’s representative requested the Presiding Officer to postpone the disciplinary proceedings against Morake pending the appeal against his conviction once a sentence had been imposed. The Presiding Officer granted a postponement until 24 June 2011 provided that Morake submitted proof that he had filed an appeal against his criminal conviction of theft. On 24 June 2011 the Presiding Officer granted Morake a further request for postponement until 11 July 2011 to give him the opportunity to file his appeal against his conviction and furnish the proof. The appeal had not been filed yet because both parties were experiencing difficulty in having the record of proceedings reconstructed. Tapes and CDs, containing the criminal trial proceedings were missing.

The Presiding Officer in the misconduct inquiry therefore ordered the disciplinary hearing to proceed on the actus reus concerning the allegations of theft; this implied that the charge of misconduct had to be amended or replaced. The misconduct inquiry did not proceed in respect of all the charges since Morake’s representative’s mandate was terminated. On 14 May 2012 Morake requested an indulgence to instruct a legal representative - this request was granted. Dates for the leading of evidence (trial) were set in consultation with Morake’s counsel but Morake continued to request postponements (see document). He also requested the Commission to disclose the content of the preliminary investigation reports - the Commission objected and the defence later abandoned the application for the disclosure of the preliminary investigation reports. The date for trial was set for 21 -23 January 2013. Morake was informed that if counsel has not been briefed and placed in funds by then, the inquiry will proceed without him/her. The Commission was able to, in consultation with the Presiding Officer and Morake’s counsel, set an earlier date for the inquiry to proceed. The Commission was able to lead the evidence of three witnesses on 7 and 8 January 2013. The inquiry stood postponed to 28 February 2013 for further evidence. Arrangements had also been made with counsel for Morake to, prior to this date, discuss the charges preferred against him in order to establish which allegations were admitted and which were disputed. A decision by the Magistrates Commission to withhold Morake’s remuneration in terms of section 13(4A)(a) of the Magistrates Act No 90 of 1993 was confirmed by Parliament on 24 November 2011. Morake was currently not receiving any remuneration whilst the misconduct inquiry was proceeding against him.


Progress Report on Provisional Suspension from Office of Magistrate T R Rambau
Magistrate Louw informed the Committee that on the advice of the Commission, the Minister provisionally suspended Magistrate Rambau from office with effect from 4 November 2010 which suspension was confirmed by both Houses of Parliament on 18 and 24 November 2010 respectively. On 8 February 2010, the Regional Court President of the Limpopo Province informed the Commission that Rambau, a regional magistrate at Polokwane, had been arrested for corruption on 5 February 2010. Rambau was arrested together with the prosecutor and an attorney. It is alleged that Rambau, the prosecutor and the attorney arranged the outcome of a trial by pre -determining the sentence for financial reward. Rambau and his co -accused appeared in the Musina District Court on 8 February 2010 on charges of corruption. The criminal case had been postponed several times. A written notice containing the allegations on a charge of misconduct dated 17 November 2010 was served on Rambau. At the misconduct inquiry, set down for 9 February 2011, Rambau requested the Presiding Officer to postpone the inquiry until the criminal case against him had been finalized since the criminal charge(s) preferred against him formed the basis of the disciplinary proceedings against him.

The Presiding Officer postponed the misconduct inquiry to 8 April 2011and requested both parties to address him on whether or not to postpone the misconduct inquiry pending the finalization of the criminal case against Rambau. Rambau instructed an attorney to represent him in the misconduct inquiry. At the misconduct inquiry on 08 April 2011 Rambau applied for the proceedings to be postponed without his attorney being present. He further indicated that he wanted to be furnished with further particulars in respect of the misconduct charge against him. The Presiding Officer granted the request for a postponement, provided Rambau’s counsel appeared before him on the remand date and formally requested the Commission to be furnished with further particulars in writing. On 20 June 2011 counsel appeared on behalf of Rambau at the misconduct inquiry. No further particulars were requested from the Commission at that stage. The defence again requested a postponement pending finalization of the criminal matter against Rambau. It was indicated that the criminal case would likely be concluded in October 2011. The Presiding Officer granted a postponement until 12 September 2011. Counsel for Rambau thereafter requested disclosure and/or discovery of all documents, statements, a list of witnesses etc. from the Commission which was duly submitted. Neither Rambau nor his counsel was present at the last occasion. Rambau submitted a medical certificate indicating that he was unfit for work, due to diabetes mellitus. Contact has eventually been made with Rambau’s counsel.  A date for the continuation of the inquiry was to be set soon.


Progress Report on Provisional Suspension from Office of Magistrate C M Dumani
Magistrate Meijer informed the Committee that the Minister, on the advice of the Commission, provisionally suspended Magistrate Dumani from office with effect from 16 September 2009 which suspension was confirmed by both Houses of Parliament on 12 and 17 November 2009 respectively. Dumani was charged with four counts of misconduct. He denied all the allegations against him. At the conclusion of the misconduct inquiry he was found guilty of three of the four charges of sexual harassment against female clerks at the Graaff -Reinet Magistrate’s Office.

The Commission commenced leading evidence at the inquiry on 5 August 2009. On 24 May 2010 the Presiding Officer at the misconduct inquiry recommended that Dumani be removed from office in terms of section 13(4)(a)(i) of the Act. Dumani was legally represented throughout the inquiry. Dumani elected not to make any sub­mis­sions with regard to the imposition of sanction. Dumani was given the opportunity to lodge written representations with the Commission, which he did through his Attorney’s. Having considered his representations and the documents as required by relevant regulations, the Commission at its meeting held on 26 and 27 August 2010 resolved to support the recommendation that Dumani be removed from office on grounds of misconduct. The Commission appraised the Minister of the circumstances which moved it to make this recommendation. The Commission also advised Dumani of its recommendation to the Minister to remove him from office in writing.

On 13 September 2010 Dumani filed a motion application with the Registrar of the Eastern Cape High Court, requesting the Court to interdict and restrain the Minister from taking any further action against him, pending the final determination of another application before the Court to review and set aside the Presiding Officer’s decision in the disciplinary proceedings, convicting Dumani on three counts of misconduct. The Minister did not oppose the application. On 21 October 2010 the High Court granted the order in favour of Dumani, interdicting and restraining the Minister from taking any further action against him. The review application was opposed. The application was due to be heard on 24 March 2011 but was postponed due to administrative problems at the Grahamstown High Court - the matter was heard on 29 July 2011. On 12 August 2011 the review application was dismissed by the High Court with costs.

On 16 August 2011 the Commission invited Dumani to show cause why his remuneration should not be withheld; the Commission determined to do so at its meeting held during September 2011. Dumani was therefore not receiving any remuneration. This resolution was confirmed by Parliament on 24 November 2011. When Dumani’s application for leave to appeal against the Grahamstown High Court’s order was dismissed, he petitioned to the Judge President of the Supreme Court of Appeal. On 21 February 2012 - leave to appeal to the Supreme Court was granted. 

The Commission appeared before the Portfolio Committee and the Select Committee on 19 and 26 October 2011 respectively, requesting both Committees to hold Dumani’s matter in abeyance, pending the finalisation of the appeal.  The Supreme Court of Appeal delivered judgment in the matter and dismissed Dumani’s appeal with costs on 30 November 2012. The Secretaries of the respective Parliamentary Committees were advised accordingly and were on 7 December 2012 requested to again place Dumani’s suspension/removal from office on the agenda of the two Committees for consideration. The Magistrates Commission was of the view that the Minister’s decision to suspend Dumani, taken on 15 September 2011, still stood and that there was no reason why Parliament could not finally consider the report and pass a resolution that Dumani not be restored to the office of Magistrate.


Progress Report on Provisional Suspension from Office of Magistrate F K Ntuli
Ms Maleema Mapula-Lebese, Magistrate, Magistrates Commission, informed the Committee that this was a new matter before the Commission. In her letter dated 30 August 2012 the Chief Magistrate of Port Elizabeth, informed the Commission that Ntuli was arrested on Friday 17 August 2012 on a charge of drunken driving. He was allegedly found by a Police Officer in town around 07h15, driving alone in a motor vehicle, which was moving from one lane to another, an indication that the driver was not in proper control of the motor vehicle. He was subsequently charged with misconduct, found guilty and on 8 July 2009 strongly reprimanded by the Presiding Officer to refrain from any similar misconduct in future. In order to advise the Minister on his provisional suspension from office pending the outcome of the investigation, Ntuli was afforded the opportunity to comment on the desirability of such provisional suspension. The Commission having considered Ntuli’s response resolved to recommend that Ntuli be provisionally suspended from office, pending the investigation into his fitness to hold office. The Commission was of the view that the existing evidence against Ntuli was of such a serious nature as to make it inappropriate for him to perform the functions of a magistrate while the allegations were being investigated. The Minister had approved Ntuli’s provisional suspension.

Progress Report on Provisional Suspension from Office of Magistrate M M Mokone
Magistrate Meijer reported to the Committee that Magistrate Mokone had tragically died in a motor accident and hence, the basis for which she was suspended fell away. In this regard, the Minister had revoked the report recommending her suspension and it was desired that the Parliament did the same.

The Chairperson responded that the Minister must formally withdraw the report that had been tabled before Parliament.

Ms D Schafer (DA) added that the Minister requested the Chairperson of both Houses of Parliament to withdraw the report.


Progress Report on Removal from Office of Magistrate L Myles
Magistrate Meijer recalled that the Committee had upon the recommendation by the Commission in its meeting of 21 August 2012 that Magistrate L Myles be removed from office on account of her continued ill health, requested that the Department furnish the Committee with a legal opinion from the State Law Advisers as to whether the Commission had followed the correct procedure in its recommendation. This opinion had been furnished to the Committee (see document).

It was the view of the Commission that Magistrate Myles be removed from office on the basis of her ill-health.


Progress Report on Withholding of Remuneration of Magistrate N Ndamase
Magistrate Meijer informed the Committee that the Commission resolved at its meeting on 20 and 21 July 2012 to recommend that Magistrate Ndamase be removed from office on the ground of eleven counts of misconduct in terms of section 13(4)(a)(i) of the Magistrates Act, 1993 (Act 90 of 1993). Ndamase was invited to show cause why the Commission should not determine to withhold her remuneration in terms of section 13(4A)(a) of the Act. Having considered Ndamase`s representations, the Commission at its last meeting determined to withhold Ndamase`s remuneration in terms of section 13(4A) (a) of the Magistrates Act. The Commission was of the view that the withholding of Ndamase`s remuneration, pending the consideration by Parliament of a recommendation by the Magistrates Commission for her removal from office, was justified. There was no reason why a Magistrate on suspension or provisional suspension should be paid for the periods of suspension prior to removal from office. The Commission was in the process of drafting a letter of recommendation to the Minister on her removal from office.

Discussion on Provisional Suspension from Office of Magistrate M T Masinga
The Chairperson questioned why the cross examination by Masinga’s defence was still on when it started in 2011.

Mag Louw responded that it was probably a delay tactic - Masinga sometimes spent a week questioning a single witness.

Ms D Schafer (DA) remarked that it was a mitigating factor that Masinga’s salary had been stopped.

Ms Schafer decried the embarrassing conduct of Masinga. He was a Magistrate, yet had to get trade unions to represent him and had consistently employed underhand tactics to delay the trial - it was essential the Presiding Officer took a definite stand and stopped the delays.

Mr J Jeffery (ANC) remarked that the conduct of the trial raised serious concern on the conduct of the Presiding Officer conducting the matter. Masinga had been found guilty of attempted murder since 2010 - the conduct of the disciplinary matter was worrisome.

Mr Jeffery suggested that the Commission examined the conduct of the Presiding Officer at the end of the matter.

Mr Jeffery conveyed the displeasure of the Committee that a Magistrate that had been found guilty of attempted murder and domestic violence still remained a Magistrate. Was Masinga entitled to other benefits besides his salary that had been suspended?

Mag Louw replied that all benefits had been stopped along with his salary.

Mag Meijer added that although he did not speak for the Presiding Officer, he was aware that with regard to the delay in the matter, the Presiding Officer was taking into account the concept of fairness to avoid questions being raised on the integrity of the process.

Mag Louw also added that he was aware the Presiding Officer had attempted to expedite the process on several occasions.

Mr Jeffery remarked to the Chairperson that the displeasure of the Committee must be clearly expressed to the Commission.

Discussion on Provisional Suspension from Office of Magistrate I W Morake
Mr Jeffery questioned why Morake had been found guilty of theft since July 2007, yet his salary was only suspended five years later.

Mag Meijer explained that Morake appeared for the first time in court in 2007 - he was convicted in 2010 and sentenced 2011. The contents of the dockets had disappeared so it was difficult to draw up the charge against him for the hearing.

The Chairperson requested that the Commission relay to the Committee in writing the missing docket number.

Mr Jeffery commented that the court process had been unduly protracted - from the analysis by Meijer it had taken three years for judgement to be delivered.

The Chairperson condemned the lengthened process

Mr Jeffery opined that the Commission be asked to explain why it had taken three years to deliver judgement.

Mag Meijer replied that it was the trial that took three years.

Mr Jeffery noted that there was a problem with the reporting style of the Commission’s report and there was need for clarity. Nevertheless, a three year trial in a district court was still lengthy.

Mr Jeffery opined that bad apples within the Magistracy affected the integrity of all other Magistrates’ and it was expected that this would ensure expedition of treating these matters.

Mr S Holomisa (ANC) opined that the delay in finalization of court cases was a shared responsibility, and although it should not be condoned, the responsibility should not lie solely with Magistrates.

Mr Holomisa asked if any investigation had been conducted by the Commission into the disappearance of the contents of the dockets and records of trial.

Mag Meijer responded that the Commission had done its best - it had good records of transcripts and it was beyond the Commission’s jurisdiction to compel an investigation by the police. The Commission had asked the police what had happened and had not gotten any satisfactory responses. The Commission had copies of the content of the docket before it went missing.

The Chairperson asked if the copies the Commission had were complete records.

Mag Meijer replied that on the face of it they appeared complete.

Mag Meijer also remarked that the Commission had approached the Director of Public Prosecutions, who had sent out a letter requesting expedition of all criminal matters against Magistrates.

Ms Schafer suggested that the Committee instituted a formal enquiry from the police to ask what happened. Mr Jeffery agreed.

Mr Jeffery remarked that the tapes of the trial going missing at the time when Masinga was to appeal sounded suspicious.

Mr Jefferey decried the handling of erring Magistrates’. What kind of message was being sent out on the seriousness of the Magistrate’s Commission in dealing with its own people?

Ms Schafer stated that it was time the Presiding Officer took note of Regulation 26 (14) of the Regulations for Judicial Officers in Lower Courts; after proper notice had been served, the hearing should proceed and this should be applied.

Mr Holomisa noted that according to the presentation document, when the matter was postponed to 25th of February, it was for the purposes of determining the allegations. What determinations were made?

Mag Meijer responded that the determination was for further evidence to be led - the Commission was proceeded with leading of evidence. The Presiding Officer was however unavailable. The Commission was to continue to lead evidence on the 13 and 14th of April and the Presiding Officer had decided with or without Morake’s Counsel, the matter would proceed.

Discussion on Provisional Suspension from Office of Magistrate T R Rambau
Ms Schafer asked for clarification; was it correct that the Commission recommended that Rambau’s remuneration was not to be suspended because he was yet to be convicted and why.

Mag Louw responded in the affirmative.

Ms Schafer asked the Chairperson that the Committee made a recommendation to the Commission that Rambau’s remuneration be suspended immediately.

Mag Meijer replied that the Commission had written to Rambau to show cause why his remuneration should not be suspended but he had not appeared at the last hearing to do so because of his alleged medical condition.

Ms Schafer opined that it was a mere excuse. Diabetes was not an ailment that ‘happened’ it was a lifestyle disease.

Mr Jeffery asked when the criminal case of Rambau was to resume.

Mag Louw responded that it was to resume on 9 and 10 of April. The Magistrate had made an order that the co accused be given assistance by the State in terms of legal representation.

Mr Jeffery noted that the report was not updated. He suggested to the Committee that the report in its entirety be rejected by the Committee. Information had not been properly supplied and the report was shoddy. It was obvious the Commission was did not regard the issue seriously.

Ms C Philane -Majake (ANC) remarked that while she sympathised with the workload of the Commission, a very bad impression on handling of serious cases had been created.

Ms Philane -Majake noted that placing an individual on precautionary suspension for a period of two years raised many concerns with regard to contraventions against labour laws. The essence of recommending suspension of salary was to deal with a corrupt magistrate.

Mag Louw responded that the provisional suspension was a mechanism to deter persons who had been indicted of corruption or similar grievous offences from sitting on the bench. The defence was responsible for the duration with its incessant delay tactics.

Mag Meijer added that provisional suspension was for investigative purposes. Rambau’s case was still under investigation.

The Chairperson asked when Rambau was to appear before the Commission to state his case for non -suspension of his remuneration.

Mag Meijer responded that he was to appear on 1 March.

Mr Jeffery withdrew his proposal on rejecting the report but stated that it was necessary the committee made strong statements on the report in its letter to the Commission. The concern of the Committee with regard to Rambau still receiving remuneration should be looked at urgently by the Commission.


Discussion on Provisional Suspension from Office of Magistrate C M Dumani
Mr Jeffery questioned if the report before the Committee requesting it to pass a resolution that Mr Dunami be dismissed had been circulated amongst Members.

Mag Meijer stated that the report had been circulated amongst Members of the Committee as far back as September 2011. Dumani had been found guilty of sexual harassment, proper procedure had been followed therefore the report from the Minister dated 15 September 2011 should be accepted by the Committee and the Committee recommend that Dumani should not be reinstated.

Ms Schafer moved the motion that the Committee accepted the recommendations and Dumani should not be reinstated to office. Mr Jeffery seconded the motion. There was no opposition.


Discussion on Provisional Suspension from Office of Magistrate F K Ntuli
Ms Schafer decried the light sentence of a reprimand handed to Ntuli on the charge of drunken driving.

The Chairperson opined that magistrates appearing before other Magistrates tended to garner sympathy from colleagues, hence the ridiculous sentence.

Ms Schafer opined that the sentence should perhaps be appealed by the Commission.

Mr Jeffery noted that there was a need to investigate if Ntuli was on his way to work in a drunken state and if there were any other allegations of drunkenness on duty against him.

Ms Lebese replied that the head of office had indicated that it was Ntuli’s nature to absent himself from work but there were no other incidences of drunkenness.

The Committee approved the Minister’s recommendations to suspend Ntuli.

Discussion on Removal from Office on Account of continued Ill-health of Magistrate L Myles.
Ms Schafer asked if Myles had been approached to apply Regulation 30.

Mag Meijer replied that she had and she declined.

Ms Schafer responded that the Committee should follow the recommendations in the report.

Ms Philane -Majake asked if the services of a counsellor and psychiatrist had been suggested.

Mag Meijer responded that she was advised to seek out professional counselling but she never made an appointment.

The Chairperson asked if the Commission had made any other recommendations to Myles with regard to her options under Regulation 30 and if she had at any point returned to work.

Mag Meijer replied that she had taken exception to being approached with the suggestion to using the Regulation 30 options and no further discussions had been pursued with her after then. She had also refused to submit further medical certificates.

The Committee agreed that since Myles had been suspended by the Minister, the Committee recommended that she should not be restored to office.

The Chairperson brought to the attention of the Committee a similar case of Acting Magistrate Thomas that had been brought to his attention. Mr Thomas had been appointed as an Acting Magistrate and, as in the case of Ms Myles, had developed a strange illness. Mr Thomas had received a letter from the Minister stating that he had been removed as an Acting Judge. Based on this, Mr Thomas wrote to the Chairperson, challenging the procedure by which he had been removed. The Chairperson suggested that the definition of Magistrates in the Magistrates Act did not include Acting Magistrates, hence the procedure for removal of regular Magistrates may not necessarily apply to Mr Thomas. The Chairperson asked for comments on the issue from Members and the Commission.

Ms Schafer noted that Acting magistrates were appointed by the Deputy Minister and therefore the decision to re appoint them or not lay with the Deputy Minister also.

Mag Meijer clarified that there were two categories of persons considered as ‘Acting Magistrates’. The first were attorneys appointed under a contract for a defined period to help clear backlog case. The second were appointed through the normal process of appointment and out on a six month probationary period; Mr Thomas belonged to the second category. He had violated certain terms in his probation contract and on this basis, his contract was terminated.

Mr Jeffery asked who had appointed Mr Thomas and whether he had gone through the normal process for appointment.

Mag Meijer responded in the affirmative. There had been an interview which he attended at the local provincial level of the Judicial Service Commission.

Mr Jeffery suggested that the Chairperson formally referred the case to the Commission. A person appointed on probation was permanently appointed. Labour court rulings on probation were that steps must have been taken to correct behaviours before termination. The best would be to refer the issue to the Minister.

Ms Philane -Majake stated that it was important to determine if he was an Acting Magistrate or a Magistrate on probation.

The Chairperson clarified that the letter had stated he was acting.

Mr Jeffery stated that from Meijer’s description, he was not acting.

Mag Meijer added that there was a legal opinion that Magistrates on probation were regarded as Magistrates also.

Mr Jeffery asked why the proper processes were not followed.

Mag Meijer responded that not all concerned were aware of the facts.

The Chairperson responded that the case was clearly in line with the Myles case and same processes should have been followed.

The Chairperson thanked all in attendance. The meeting was adjourned.

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