Progress Reports on Magistrates: briefing by Magistrates Commission; Implementation of the Child Justice Act: Content Advisor briefing; Traditional Courts Bill: update

Meeting report

Magistrates Commission Report: Lifting of provisional suspension Magistrate Ntuli
Mr Johannes Meijer, Magistrate, Magistrates Commission noted that Mr Ntuli was charged criminally with driving a vehicle whilst intoxicated. The Commission had recommended that he be suspended and that was done, pending a misconduct inquiry. However, at that inquiry, in May 2013, the two witnesses who testified on behalf of the Commission contradicted each other to such an extent that the Presiding Officer called for a dismissal of the case, and Mr Ntuli was therefore found not guilty on charges of misconduct. The Commission believed that these circumstances did not justify the continuation of the provisional suspension, and thus requested that it be lifted.

The Chairperson noted no objections from Members, and read out the Committee Report and resolution to support the lifting of the provisional suspension.

Progress report on provisional suspensions:
Mr P Hole
Mr Andre Louw, Magistrate, Magistrates Commission noted an error; paragraph 3.2 on page 3 of the report, in the third line, should read that the application was turned down.

Mr Louw asked if the Committee needed more background to the comments made in the Regional Court that had led to the dispute between magistrates Hole and Nqadala, but Members did not require this.

Mr Louw continued that Mr Hole was provisionally suspended in September 2011 and the charge sheet was served on him, listing the charges of misconduct. In April he asked that the Department of Justice and Constitutional Development foot the legal bills, but a response on that was received only on 16 October 2012. He then approached the Presiding Officer to request a postponement as he wanted to take the matter to the High Courts and certain points were raised in limine. When turned down, his legal Counsel (an Acting Judge in the High Court acting for him pro bono) indicated that he was only available during court recess. A number of postponements went on. The inquiry was postponed again, to 6 December 2013, and he was told that it would proceed, even if he was not represented, as the Presiding Officer had ruled that no further postponements were allowed. The Department was still not prepared to pay his legal costs so he was reliant on his pro bono  legal representative.

The Minister had provisionally suspended Mr Hole, but the provisional suspension had to be lifted later, in respect of his part-heard matters, and he was busy dealing with those at the moment and was receiving a salary.

The Chairperson noted that report.

Mr M Masinga
Mr Louw said Mr Masinga was convicted in the Regional Court Durban and sentenced to 10 years for attempted murder of his wife and other charges. He appealed and that appeal was still pending. The misconduct proceedings commenced in 2011 and all the witnesses for the Commission had been led and cross-examined at length by Mr Masinga. He had applied for numerous postponements along the way for a variety of reasons ranging from alleged illness, to losing his spectacles which prevented him from reading the documents, and raised numerous points in limine. The cross examinations of every witness of the Magistrates Commission– using all transcriptions of the criminal case – had been extremely lengthy, and he had spent almost a week on one witness alone. The matter had been dragging on for a long time. He had testified and been cross-examined. However, now he said he wanted to call witnesses as well. The matter had been postponed to 8 November. He was not currently receiving a salary.

The Committee noted that report.

Mr Morake
Mr Meijer pointed out that Mr Morake had been found guilty of theft, and had taken the matter on appeal. That was still pending. There were also five other charges of misconduct. A long history was set out of the postponements. Firstly, his legal representative had withdrawn and he requested a date of postponement to brief counsel. On the set date he said that he was ”frantically looking for an attorney”.  On 18 June 2012, dates were set in consultation with counsel, and Mr Morake was given the opportunity to brief the counsel. In August 2012 he requested further postponements, saying he had not been able to fund Council and asked for disclosure of criminal investigation reports. The Commission objected to that and the matter was set down for argument in October 2012. Mr Morake then abandoned that application. On the next date no attorney was present and the witnesses for the Commission were present to testify, but Mr Morake again placed on record that he had not been able to pay his attorney or brief Counsel and another postponement was requested. The Presiding Officer ordered that his attorney be present on the date set for trial in January 2013 and that even if no representative had been placed in funds, the inquiry would proceed.

On 7 and 8 January 2013 the evidence of three witnesses was led. In consultation with the Senior Counsel whom Mr Morake had appointed, a further date was agreed upon, for 3 and 4 April, to proceed. More evidence was led on those dates. It was postponed to July for trial. However, the Presiding Officer had by then had been appointed as an Acting Judge, and the trial dates were amended to 26 and 27 November 2013. The Magistrates Commission was engaging with Mr Morake to attempt to limit the issues in dispute.

Provisional Suspension Mr T Rambau, Limpopo
Mr Meijer said that the Commission had at one stage been at a loss on how to proceed because his Mr Rambau’s counsel was not ready and Mr Rambau could not be traced. Eventually, when the matter was set down to commence again, he said had instructed an attorney to represent him but at that inquiry, he applied for a postponement and it was placed on record that he had not instructed that attorney to represent him. In June, Counsel appeared for Mr Rambau, and further particulars were requested, about a postponement pending finalisation of the criminal case, which the Commission was informed was likely to be concluded in October 2012. Counsel requested disclosure of all documents, which was done. Various postponements again followed, including Mr Rambau submitting a medical certificate. On 2 February 2013 the Commission was told that his attorney had withdrawn and counsel had been cancelled. A new date for the inquiry was set for 25 March. He maintained, at that stage, that he had placed his attorney in funds and that Counsel was on record, and he was ordered to make sure that they were present on 13 May. On that date, the presiding officer had been appointed as an Acting Judge in the High Court and the matter was postponed to 15 July. On this date, a new attorney said that he had been instructed and asked for documents, claiming that none had been handed over by the previous attorneys, to allow the matter to proceed. The matter was now set down for 4 and 5 November.

The Committee noted this report.

Provisional Suspension Chief Magistrate J van Schalkwyk
Mr Meijer said that a request for further particulars was received on 2 October 2013 from the newly instructed attorney for Ms van Schalkwyk, and this was being attended to. The presiding officer had been duly appointed by the Magistrates Commission. Ms van Schalkwyk had changed attorneys. There were 24 charges of misconduct and the attorneys had requested about ten questions on further particulars for each charge, which the Commission was busy answering. A date for the hearings would be set, in consultation with her attorney.

Mr S Matila (ANC, Gauteng) asked if this was the same person whose suspension had recently been confirmed in the House.

The Chairperson confirmed that it was the same person.

Mr J Gunda (ID Northern Cape) said that he had a problem in principle with some of these matters. He noted that in every case, numerous postponements had been requested, and questioned the cost of this to the Commission.

Mr Meijer agreed that this was a concern, and it was one that was raised by the Commission to the presiding officers. However, the presiding officers were concerned to ensure that the procedures were substantially fair, and thus had to lean over to being lenient, to achieve substantive and procedural fairness, and uphold the Constitution. The Magistrates Commission may, depending on the circumstances, object to requests for further postponements.

Mr Gunda said that another point was that many of the magistrates were claiming that they did not have money to pay for legal representation and wondered if their rights were not being harmed. Several had been suspended without salary.

The Chairperson noted that the Committee had considered, for each of them, whether they should be suspended with or without salary. It was not necessary for the Committee Members to go into this again. Where they were suspended without salary, the Committee had made a previous decision and this was purely a report back and the noting of the progress.

Mr Matila reminded the Members that there had been a problem when Mr Hole had been provisionally suspended as the Minister had later asked for a lifting of that suspension to allow him to hear his part-heard matters. He asked the Commission if they were satisfied, in all cases, that this would not be a problem again. He thought it was not desirable that suspensions be lifted to allow them to attend to cases, and urged that the effects of the decisions should be more carefully thought through.

Mr Meijer said that Mr Hole was a Regional Magistrate, and so was actively involved in the court all the time. Ms van Schalkwyk was the judicial head of office, so she was in an administrative post and she was not involved in court work, and there were no part-heard matters in her case. The Commission was satisfied also that there were not problems in the other matters.

The Chairperson thanked and released the Commission representatives.

Child Justice Act: Briefing on reviewing age of criminal capacity and National Policy Framework: Committee Researcher and Committee Content Adviser reports
Ms Patricia Whittle, Committee Researcher, said that she and the Content Adviser, Ms Anthea van der Burg, had drawn two papers to brief Members in preparation for the following day’s meeting. One set out a number of questions which the Committee might wish to address to the presenters. Summaries of the amount of money spent, over the years, by the South African Police Service (SAPS) and Department of Justice and Constitutional Development (DOJ&CD) on training would be given.

Ms Whittle noted that, in view of the shortage of time, she would not go through the whole document. She said that in 2010, when the Child Justice Act came into operation, there were some meetings with the DOJ&CD. Department of Social Development and Department of Correctional Services, and it was noted then, that within five years of the coming into operation of the Act, the age of criminal capacity for children must be reviewed. It was currently set at 10 years. Secondly, she noted that the National Policy Framework would have to be renewed in three years – in other words, it was due now. She was not sure whether the DOJ&CD was ready to make proposals on the changed age of criminal capacity, but suggested that it would not necessarily have to wait until the end of that five year term if it wished to make proposals now. 

There had been two annual implementation reports published by the Minister, which showed that there had been challenges.  In 2010 there was a joint meeting with the implementing departments, but that was only about five months after the Act came into operation, and more details had been given in the subsequent Annual Reports.

Ms Whittle noted that the Judicial Matters Amendment Bill also proposed some amendments to the Child Justice Act, and she would briefly talk to those.

The Chairperson interrupted at this point to note that the Manager for Parliamentary Transport had apparently left, and it was therefore not possible to arrange that buses leave later. He suggested that it made sense to adjourn now, and resume at 9:30 the following morning to go through the rest of the briefing.

Members agreed.

Traditional Courts Bill
Mr M Mokgobi (ANC, Limpopo) said that there seemed to be some confusion about what had happened with the negotiating mandates of the provinces on the Traditional Courts Bill. He had understood that the Committee had wanted to consolidate views, but he had been told that one mandate had since been submitted by Mpumalanga, which seemed to be contrary to the spirit of the meeting. The media reports were unclear.

The Chairperson said that he would be meeting with the Chair of the House on the following day.

The meeting was adjourned.