Magistrates Commission on suspension of J van Schalkwyk, UN Covenant on Economic, Social and Cultural Rights: Departmental briefing, Correction of reference in Protection of Personal Information Bill

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Justice and Correctional Services

20 August 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Magistrates’ Commission (MC) presented a report to the Committee on the provisional suspension of Magistrate J van Schalkwyk. She was suspended by the Minister on 4 June 2013, pending a full inquiry into her fitness to hold office as a magistrate. Numerous allegations had been made against her, including refusal to cooperate with lawful directives, her abusive and inappropriate attitude to the Chief Justice and MC, and the reports that she severely abused her powers by cajoling or threatening colleagues, especially those on contract appointments, to assist her with personal matters during and outside office hours, sometimes taking them out of their courts. She apparently gambled during office hours, had run up substantial debt and had borrowed money from colleagues and attorneys. She had shown conflicts of interest, and requested other magistrates to write her judgments. Her response as to why she should not be provisionally suspended was considered by the MC on 11 May 2013. A full inquiry was now pending. Despite being told that she should not communicate with any staff at the court, she was continuing to do so. Members noted that the allegations were serious and supported the MC’s viewpoint, although there was not a quorum to take a final resolution. They asked that copies of annexures be sent to the Committee, and requested more clarity on some points. They also were concerned whether there were part-heard matters, and urged the MC to finalise the inquiry as speedily as possible.

The Chairperson noted that a Motion would be brought in the House that day for a textual amendment, to correct an incorrect reference that had been included in the Protection of Personal Information Bill.

The Department of Justice and Constitutional Development briefed the Committee on the UN International Covenant on Economic, Social and Cultural Rights. South Africa had signed it in 1994, but it had not been ratified until now because several departments had been unwilling to deal with ratification; it finally ended up with this Department. The Covenant essentially dealt with protection and promotion of second-generation rights, including education and employment, as already contained in the South African Constitution. The State Law Advisers were satisfied that there was no conflict with domestic law, and believed that no special legislation was needed to give effect to the Covenant. However, there had been questions raised by the Departments of Education about interpretation of the wording, particularly whether they would be required to do more than ensure progressive realisation of access, within budgetary limitations. The consensus was that they would not, but a Declaration would be lodged, if the Covenant was approved, confirming this interpretation. Members sought further clarity on the interpretation aspect, asked if departments would be able and willing to implement, cautioned that there were always financial implications to ratifying, but agreed in principle that it would be desirable as this was a very important instrument. They questioned why the Optional Protocol was not being ratified as well, asked who would lead the process, asked whether it had been discussed with the South African Human Rights Commission, and what implications it may cast on this body. One Member asked if it would have a substantial impact on those who were dissatisfied with service delivery at present. The Committee would take the necessary steps to recommend ratification when it had a quorum.

Meeting report

Magistrates Commission: Proposed suspension of Magistrate J van Schalkwyk
Mr Johannes Meijer, Member of Magistrates’ Commission, presented a report to the Committee on the provisional suspension of Magistrate J van Schalkwyk, in terms of section 33(b) of the Magistrates Act, pending a final inquiry into her fitness to hold office as a magistrate.

The allegations against Ms van Schalkwyk first emanated from a complaint by the Chief Magistrate of Johannesburg that she had refused to cooperate with a request. She had responded in a tone that was inappropriate. She had distributed the correspondence between the two to other people. She had also made insulting remarks about the Chief Justice.

Her colleagues had also lodged complaints. It was alleged that she severely abused her powers, and used magistrates under her control to perform other work for her personally, such as completing forms for micro-lenders’ applications, driving her to appointments or to her home, and instructed some to attend to personal matters of hers during and after office hours, such as doing her hair for her. There were allegations that she gambled during office hours. She borrowed money from other magistrates, and also from an attorney who dealt with cases in her court. It was also alleged that she had, in return for an arrangement to extend the Sheriff’s jurisdiction, also obtained money from the Sheriff. She presided over cases in which there was conflict and she should not have sat, and then denied having done so, although the Magistrates Commission had evidence of this. She had appointed a magistrate from her own office to preside in a matter where she was the applicant. She handed down judgments not written by herself, but that she had instructed other magistrates under her control, or even an attorney, to write, and some of these had been written before the evidence was presented. She also ordered other magistrates to attend to matters of hers during their court hours, hindering the proper running of the courts. She was in substantial debt, to the tune of around R1.9 million. It was alleged that she had abused court processes. The tone that she had used to the Judge President of Gauteng, and also to the Magistrates Commission itself, was inappropriate and had brought the Magistrates forum into disrepute.

Based upon all these allegations, which were submitted in the form of sworn statements, the Magistrates Commission (MC) had asked her to show cause why she should not be suspended provisionally, pending a formal investigation into the allegations. Mr Meijer said that he had served the letter on her personally. She had been requested not to discuss any of the matters contained in the letter with any other officials, in an attempt to avoid them being victimized or unduly influenced. Despite the request that she should not communicate with any support staff and prosecuting authority, and not interfere directly or indirectly she was still doing so, putting pressure on, or victimizing other magistrates, and trying to ensure that the contract magistrates’ contracts were not renewed.

On 11 May the Executive Committee of the MC had considered Ms van Schalkwyk’s lengthy response, and resolved to recommend that she be suspended. She was suspended on 4 June 2013. The Commission was of the view that the allegations were so serious that it was inappropriate that she continue to perform as a magistrate. The severity and nature of the continuing abuse, and her instructions to other magistrates, were serious. The fact that she was removing other personnel from their offices to attend to her matters was detrimental to the course of justice. The preliminary investigation had been completed and concluded, and the charge sheet for the final enquiry was signed and served on her on 1 August 2013. Senior magistrates, including a Regional Court Magistrate, were to be appointed to run the investigations.

Ms D Schäfer (DA) asked if this report was merely to inform the Committee of the Minister’s action, and whether it was necessary for this Committee to take a decision. She thought the suspension was justified. For the sake of completeness she would like to have the annexures.

The Chairperson asked Mr Meijer to provide the annexures, but he responded to Ms Schäfer that this Committee actually did need to refer the matter to the House, having adopted a report.

Adv L Adams (COPE) asked what the refusal to execute a lawful order related to.

Mr Meijer said that the Chief Justice had requested the MC to assist in sending out a circular to all chief magistrates, asking that all judicial heads of courts must be informed by them whether the courts were fully functioning, and whether magistrates in their courts were or were not striking. The Commission had sent out the circular conveying the request of the Chief Justice. Ms van Schalkwyk, however, simply refused to submit any returns as required, and merely responded that she had nothing to say.

Ms C Pilane-Majake (ANC) said that due process would take place, with proof of the allegations provided. She supported the actions taken so far. She asked if there were any part-heard matters that were the responsibility of Ms van Schalkwyk, pointing out that there had been a problem a few months ago with a similar situation, when one suspended magistrate had to be recalled to conclude part-heard matters.

Mr Meijer responded that Ms van Schalkwyk had not sat in court so there was not a problem there.

Ms S Shope-Sithole (ANC) was worried about this report. It seemed that Ms van Schalkwyk had deliberately taken steps to act incorrectly. She wondered how prevalent this type of behaviour was, and asked whether it could not have been prevented sooner, given the litany of misdeeds now presented to the Committee.

Mr Meijer responded that he was not sure whether Ms van Schalkwyk was the only individual behaving in this way. This was only reported at the beginning of year, although it seemed that her behaviour and her threats to terminate contracts had been ongoing for some time. She had been threatening those who refused to do her bidding, and they were clearly frightened of her. The complainants would testify, but they were still fearful of victimisation. Some had even requested that they be allowed to come to the MC offices to speak to the Commission. It was unfortunate that the MC was only in a position to act when matters were brought to its attention.

The Chairperson said that the Committee would adopt the necessary resolution to confirm the suspension, when there was a quorum, and would then take the matter to the House for its confirmation.

Ms Schäfer urged the Commission to finalise the inquiry as soon as possible.

Mr Meijer said that the MC was waiting for a response to the charge sheet from Ms van Schalkwyk, in order to limit the issues in dispute. She had requested further particulars. A presiding officer would be appointed who was not part of the Judicial Officers Association, and it would try to expedite the matter.

Correction of reference in Protection of Personal Information Bill
The Chairperson said that it was unfortunate that the Committee may miss things from time to time, and said that it had been brought to his attention, by Mr Henk du Preez of the Department of Justice and Constitutional Development, that an incorrect cross-reference had slipped into the Protection of Personal Information Bill. He urged that in future, Members themselves must try to check all the cross-referencing and not leave it to the drafters.

The Parliamentary Legal Advisers believed that this was a “textual amendment” which could be remedied by a motion moved by the Chief Whip of the majority part, and this would be done today. The motion would relate to clause 40(1)(b)(ix)(bb) of the Bill, which should have referred to section 44(2). Assuming that the motion would be adopted, the Chairperson would then be required to give a short report.

Members agreed.

The Chairperson asked to be excused at this point, as he had to attend another meeting.

Ms Pilane-Majake proposed that Mr J Sibanyoni (ANC) take the position as Acting Chair, which was confirmed by other Members.

UN International Covenant on Economic, Social and Cultural Rights: Department of Justice and Constitutional Development briefing
Mr John Makhubele, Deputy Chief State Law Adviser, and Ms Pearl Nhlapo, State Law Adviser: International Legal Relations Unit, Department of Justice and Constitutional Development, thanked the Committee for the opportunity to brief the Committee. Mr Makhubele tabled an apology for the Director General of the Department of Justice and Constitutional Development (the Department), who was unable to be present.

Mr Makhubele said that a long road had been followed since the Chapter 9 institutions and NGOs first called upon South Africa to accede to the International Covenant on Economic, Social and Cultural Rights (the Covenant). The Covenant was created on 3 January 1996, and South Africa had signed it in 1994.

There had been a substantial delay in bringing the matter to Parliament. Mr Makhubele explained that in 1998, South Africa ratified a number of other treaties that had all been signed in 1994, but the ratification of this Covenant was purposely left out of that process. He noted that there had been unwillingness on the part of several departments to pilot the ratification. The Department of Labour was initially supposed to deal with the matter, but had not, and the matter was then passed over to the Department of Social Development. In 2009 it was moved to the Department of Performance Monitoring and Evaluation. However, because the Presidency was an oversight department, it was recognised that it would be more appropriate that a line department deal with it, and in 2011 the Department of Justice and Constitutional Development was asked to take the lead.

The Covenant essentially looked at protection and promotion of second-generation rights, including education and employment. These rights were already set out in the Constitution. The question was therefore asked whether special legislation was needed to give effect to the Covenant. The Department looked at the implications of the Convention. The State Law Advisers were of the view that the Covenant was in alignment with domestic law and the Department of International Relations and Cooperation was also satisfied. However, there were some questions raised about the demands that the Covenant would place on other departments. The Department of Basic Education (DBE) and the Department of Higher Education and Training (DHET) had been worried about the requirement that could be interpreted as requiring compulsory free education, and pointed out that this would not be possible for South Africa, given its current budget. At the time that South Africa became a signatory, it was already giving progressive effect to increasing access to education, within available resources, but when the matter came to Cabinet, a question was raised whether, in the light of the Grootboom Constitutional Court decisions, more would have to be done.

Mr Makhubele noted that the phrasing used in the Covenant referred to “maximum available resources” (which was not reflected in the Constitution) and “progressive realisation”. The legal advisers were satisfied that South Africa would not have to do more than maintain progressive realisation within budgetary limitations. The Bill of Rights was interpreted by them as essentially stating the same as the Covenant.

The Department therefore requested that this Committee recommend ratification to the NA. However, Mr Makhubele noted that although it was not strictly speaking necessary, there was a strong view that a Declaration must be prepared, stressing the fact that progressive realisation would be the approach adopted when implementing. The Declaration would be deposited with any instrument of ratification.

Ms Schäfer asked what exactly the Declaration would say. To her mind, there was no conflict, as she believed that there could only be progressive realisation within the available resources. She said that one of the reasons given earlier for the delay in ratifying was the apparent conflict between the Covenant and the Constitution, but presumed that this was the point that Mr Makhubele had just addressed.

Mr Makhubele explained that the Declaration would essentially say that progressive realisation would be followed.

Ms Schäfer asked why the Optional Protocol was not being ratified as well, so that complaints could be laid as international level.

Mr Makhubele said that the question of ratification of the Protocol had been raised by the NGOs. Government had felt it important that South Africa first become party to the main Covenant, and only later look at the Protocol.

When Ms Schäfer requested more information on the reasons for this view, Mr Makhubele expanded that it was really a question of sequencing. The State Law Advisers thought that the two could not be done at the same time. No other legal argument was advanced.

Ms Schäfer asked whether the line departments were likely to implement, given their reluctance to deal with the matters in the past.

Ms C Pilane-Majake had similar concerns. She thanked the Department for its efforts, saying that this was a milestone for South Africa. She agreed that it was important to stress that all efforts would be made, with the resources available. South Africa had rushed to ratify a number of international instruments, but it must be remembered that implementation cost money. She wondered why only the DBE and DHET appeared to have interrogated the implications properly, since, for instance, the Department of Human Settlements could be called upon to ensure access to housing. Given the number of informal settlements, it was clear that there were problems in that, but it was also clear that attempts must be made to improve, which was why reference to progressive realisation was important. The intention was good, and it was clearly aimed at redressing the past repression of rights. However, South Africa should not over-commit itself, because there was not an unending source of money. South Africa would also be monitored on what it was doing and its progress could be challenged in the future.

The Acting Chairperson added that South Africa was regarded as a role model by many other countries.

Mr Makhubele confirmed that it was not only the DBE who had raised a concern because a number of departments had held joint discussions on the implications. This went again to the reasons why it was considered prudent to make the Declaration to make it clear that the terminology in the Constitution and the Covenant should be interpreted in the same way. This was quite a difficult matter. He agreed that there were challenges around the financial principles. However, he also pointed out that once states had signed an international instrument, they had a moral obligation (even if that instrument had not yet been ratified) not to do anything that would go against the principles of the instruments.

Ms Schäfer asked if, effectively, Cabinet had now bought into the concept of free basic and higher education or vocational training.

Mr Makhubele said that the progressive realisation of the right to education would include both basic and higher education. However, this right must be seen within the framework of its education policy and available resources.

Ms Schäfer asked if it was acceptable, in the international field, to accede but change the terms of a covenant.

Mr Makhubele said that South Africa was not intending to make a reservation, but a declaration.

Ms Schäfer asked if the Department would now be the lead department.

Mr Makhubele responded that in 2012 government had made a commitment that South Africa must adhere strictly to all treaty obligations. The Department of Justice and Constitutional Development had done an audit of all these international obligations, including outstanding reports, and in future instruments would be dealt with in this way. The monitoring was done by the Ministers of Justice, Performance Monitoring and Evaluation, and International Relations and Cooperation. The Forum of Directors-General, chaired by the Director General in the Presidency, was another structure. There were also three clusters that would monitor. He had prepared a proposal, that would go to all clusters, that there be a national committee, so the structures would be in place to deal with the Covenant.

Adv Adams asked what substantive difference the ratification of this would make to South Africans who were taking part in service delivery protests.

Mr Makhubele responded that the landscape and therefore the protests would not change immediately. However, this Covenant’s ratification would highlight what government must do and, at an international level, the fact that questions could be asked was bound to create an increase in service delivery.

Ms Pilane-Majake said she was not entirely happy with the response on whether all government departments would be able to deal with the obligations. All departments had a challenge. She was also concerned about the country reports, saying that in the past, South Africa had ratified instrument after instrument, with the result that a backlog of reports had built up.

Ms Nhlapo said that there had been calls made to and discussions with all government departments. They mostly held the view that the Covenant in fact did not require them to do more than they were already doing to promote these rights. Only the DHET had asked that it not be placed under too onerous an obligation and had raised a concern whether it could be interpreted as forcing that department to make free education available now.

Ms Schäfer asked if ratification would cast any implications on the South African Human Rights Commission (SAHRC) who were currently monitoring socio-economic rights.

Mr Makhubele confirmed that the SAHRC would still exercise oversight. However, as the landscape changed, it could be called upon to do more, although he felt it likely that the treaty bodies would probably adopt the same approach as they did at present. A balancing act was necessary.

Ms Pilane-Majake asked how the SAHRC had been engaged in the process. It would obviously be a watchdog, but she wanted to know whether it would be doing shadow reports, or reporting directly. She pointed out that South Africa had a vibrant civil society and it was necessary to ensure that matters were done correctly to avoid criticism.

Mr Makhubele answered that there was a Forum of Chapter 9 institutions, and in 2012 there had been specific meetings held with the Chairperson of the SAHRC. The Premiers would have to report to the Chairperson of the SAHRC, and the Directors General would have to report to the Chief Executive Officer of the SAHRC. He had attended three meetings of the Forum of Chapter 9 institutions (which also included National Treasury), and this Forum had been pressing for ratification. There had been consultation with the Chapter 9 institutions and NGOs. He said that there was closer dialogue with NGOs, and no country report would now be submitted without tabling it to the NGOs. They would do shadow reports.

Ms Nhlapo stressed again that this Convention did not place any more onerous obligations on South Africa than were contained in other covenants of the United Nations and African Union.

The Acting Chairperson noted that the Convention on Torture had at last been ratified. He confirmed that the Committee would take the process forward, once a quorum was established, and recommend ratification to the National Assembly.

The meeting was adjourned.


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