Magistrates Commission briefings: Request to confirm suspension of Mr J Kgomo, updates on progress of other disciplinary inquiries

NCOP Security and Justice

11 March 2014
Chairperson: Mr T Mofokeng (ANC, Free State)
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Meeting Summary

The Magistrates Commission (MC) briefed the Select Committee on a number of matters involving disciplinary inquiries against magistrates. It firstly requested approval of the provisional suspension of Mr J Kgomo, Additional Magistrate at Randburg. Mr Kgomo had allegedly asked for and received R150 000, to influence the outcome of an extradition appeal in respect of a foreign corruption case involving R20 million.  The money was found in his briefcase, in his presence, and a corruption charge was laid against him. However, the police docket was lost when the investigating officer in the case was hijacked, and it was subsequently discovered that the computerised information had been removed from the South African Police Service (SAPS) computerised docket system. Members found it particularly disturbing that although Mr Kgomo had been suspended, he was still receiving a salary. They were also concerned how the information had been removed from the SAPS system. There were strongly worded statements from Members about the State still paying those implicated in corruption, and the possibility of syndicate practices between magistrates and the police. The Chairperson and some of the Members cautioned that the Select Committee and the MC processes had to take all due legal process and technicalities into account, but there were demands for a strengthening of Parliament in dealing with corruption, including looking at the need for amending legislation.

Progress reports were also provided on the disciplinary processes pending against other magistrates whose suspensions had previously been confirmed by the Committee, namely Mr M Masinga, Ms J van Schalkwyk, Mr I Morake, and Mr T Rambau. Members were concerned about postponements and delays in all of those cases. They expressed the view that loopholes in the law were being exploited, with the result that cases were indefinitely unresolved. They were particularly concerned that some of the cases were already pending when the Fourth Parliament started, that were now to be passed on to the Fifth Parliament..

Meeting report

Magistrates’ Commission briefings
Mr Johannes Meijer and Mr Andre Louw, Magistrates, The Magistrates Commission, jointly briefed the Select Committee on the issues that the Magistrates Commission (MC) was required to report upon to both houses of Parliament.

Request for approval of the provisional suspension from office of Mr M Kgomo
The Magistrates Commission (MC) reported that Mr M Kgomo, Additional Magistrate at Randburg, had been charged in the Randburg Regional Court on a charge of corruption, in December 2013. He allegedly demanded and received R150 000 in exchange for a promise to positively influence the outcome of an appeal for extradition, involving a foreign national who was accused of being involved in a corruption case of R20 million. The money paid to the magistrate was recovered from Mr Kgomo’s briefcase, in his presence and in his office. When charged in the Regional Court, he had been granted R30000 bail. The MC recommended that the evidence against him to date was of such a serious nature as to warrant his suspension from office until the criminal matter was resolved. The Minister had accepted that advice from the MC, and his provisional suspension now needed to be confirmed by Parliament. He was still receiving his salary.

However, there were challenges in that the police docket had been lost when the investigating officer in the case involving Mr Kgomo was hijacked. When attempts were made to reconstruct the docket from the computerized docket system of the South African Police Service (SAPS), it was discovered that information had also been removed from the police system. The MC was following up in an attempt to track the progress of investigations into this particular aspect.

Mr A Matila (ANC, Gauteng) posed a question as to how South Africa could seriously expect to fight corruption when people such as Mr Kgomo were suspended whilst still receiving their full salary. He noted that there was also an investigation into the hijacking, but he said that the fact that information was removed from the SAPS computerised system was an even more serious matter. He urged that the MC take a strong line, even if it was at risk of being challenged, and  suspend Mr Kgomo without salary. The South African Police Services (SAPS) and the Independent Police Investigations Directorate (IPID) had to look into the matter. There seemed to be a police and magistrate syndicate at work. There could be other matters about which a strong message had to be sent out.

Mr J Gunda (ID, Northern Cape) said that he supported Mr Matila’s statements. The other cases involving suspended magistrates did not resemble the current one. The law allowed for the Minister or the MEC to be asked to suspend without pay. He also agreed that the removal of the information pointed to the existence of a syndicate.

The Chairperson remarked that Members must remember that people were regarded as innocent until proven guilty. He felt that this process had to be allowed to unfold.

Mr M Mokgobi (ANC, Limpopo) remarked that the Select Committee should be cautious about how it proceeded. There was a weight of corruption to be dealt with, but it must be remembered that the law had its own technicalities. The principles of oversight and supervision had to be upheld, but he felt that the Committee would have to take legal advice about how to proceed if it wished to advocate for suspension of salary.

Mr Matila said that he agreed about the legal technicalities, but was seriously worried that, as evidenced by recent events in the country, it seemed that corruption could not be removed. In this case the magistrate was alleged to have demanded and received R150 000. He felt that, given that the Court had imposed bail of R30 000, it must have been concerned about the weight of evidence in the matter. He suspected that there was probably more money still in his pocket. The Magistrates Commission had previously presented on less serious cases, where people had been suspended without salary.

The Chairperson insisted that due process had to be observed.

Mr L Nzimande (ANC, KZN) remarked that it had previously been resolved that there were circumstances where salary could be withheld. Once a person was arrested, an investigative and, if necessary, punitive process would follow. There were measures in place. There were institutions that fought corruption, and people found guilty were punished. The process was established.

Mr Nzimande said that he supported the suggestion for an IPID investigation, as suggested by Mr Matila and Mr Gunda. However, there had to be total clarity about whether suspension without salary was justified. It would not do to make the children of an offender suffer. Alternatively, he would also like to know if it was possible to continue to pay a salary but then, on a finding of guilty, to recover any money paid by making a retrospective application.

Mr Meijer replied that there could be suspension without salary, and this step was normally taken after a magistrate had been convicted in the criminal courts. There was no proviso for taking away salary. The Act stated that salary could be withheld if a person was suspended by the Minister. In rare cases, salary had been withheld.

Mr Meijer noted that the MC shared Mr Matila’s concerns about the removal of the docket from the system.

Members confirmed that they agreed with the request for the suspension of Mr Kgomo.

Magistrates Commission update Reports on progress of other disciplinary inquiry matters
Magistrate M Masinga, Umlazi
Mr Louw noted that there had been delays in pursuing the disciplinary inquiry, due to change of lawyers and requests for postponement. In this case, the disciplinary inquiry was recommending the removal from office of Mr Masinga, who allegedly assaulted his wife and daughter with a blunt axe in 2009. He was found guilty on two criminal charges in 2011, but had appealed and that appeal was still pending. He was still provisionally suspended, and was not receiving remuneration.

Chief Magistrate J Van Schalkwyk, Kempton Park
The Magistrates Commission had charged Ms Van Schalkwyk with 24 counts of misconduct. The matter was still in progress, and the MC was in the process of furnishing her attorneys with over 200 further particulars that she had requested.

Magistrate I Morake, Lichtenburg
The Minister, on advice from the Magistrates Commission, had provisionally suspended Mr Morake from office with effect from November 2010. The Magistrates Commission had charged him with several counts of misconduct, arising from several instances in which he had threatened people in a manner that was not appropriate to his office as a magistrate. The inquiry had been postponed on numerous occasions, and there had been negotiation to limit the issues in dispute. The matter was now postponed for hearing and argument on the remaining charges. The MC was trying to get an interpreter for one of the charges involving a Bangladesh national. Mr Morake was not currently receiving any remuneration.

Regional Magistrate T Rambau, Limpopo province
The MC reported that Mr Rambau had been provisionally suspended in November 2010, following criminal charges being laid against him for allegedly pre-arranging the outcome of a trial with a prosecutor and an attorney. After numerous postponements of the criminal trial and the disciplinary inquiry, for various reasons, a new date had been set for the disciplinary inquiry to continue, in March 2013, and a new attorney was placed on record on 15 July 2013. This attorney had been given all records to enable him to continue. By agreement, the matter was postponed for pre-trial conference, which was held on 9 December. The matter was to continue on 17 February, the first witness for the MC had testified and the matter was then postponed to 5 March. However, the attorney for Mr Rambau was now, at the disciplinary inquiry, disputing the authenticity of the evidence led at the criminal trial, and in the criminal matter he had applied for the recusal of the presiding officer. The case was postponed. The MC was trying to persuade the Presiding Officer in the inquiry simply to accept the transcript of the criminal trial as a correct record of the proceedings, to avoid having to call all the same witnesses and lead their evidence again.

Mr Nzimande remarked that in some cases there had been provisional suspension with pay for a whole term. Individuals were clearly dragging out the process in order to prolong the period during which they could still receive a salary. At some point the Magistrates Commission and the Select Committee had to look at the need to amend the legislation to stop such delays.

Mr Matila noted that the cases against magistrates Rambau and Masinga had been reported five years ago, and would only be concluded in the next Parliament. The question, as he had stated before, was how to fight corruption. He believed that the “screws had to be tightened” and he agreed with Mr Nzimande that there was a need to look at the legislation and decide how the MC could be made to work more effectively in such matters.

Mr Mokgobi agreed that legislation had to be looked at, but there also had to be introspection. Efficiency had to be reviewed and measured. People’s responsibilities had to be investigated.

Mr Meijer responded that the MC must be punctilious about ensuring that misconduct inquiries were procedurally and substantially fair. The loopholes had to be known. There was progress on all the cases, but he conceded that the matters took a very long time. He noted that in all cases where a judicial officer was to be suspended or fired, this amounted to impeachment and the matters had to be brought before Parliament.

Mr Mokgobi asked that the MC take note, and the minutes record, that the Select Committee was worried. Matters had to be dealt with effectively.

Mr Matila said that the Magistrates Commission knew the loopholes, and had to tell Parliament how to close them.

Ms H Boshoff (DA, Mpumalanga) remarked that for every loophole closed, another would be found. It had to be seen to that loopholes were not opened in the first place.

Mr J Bekker (DA, Western Cape) added that the loopholes were even in the Bill of Rights.

Mr Gunda said that he could not understand what exactly was happening in one of the “top departments”. People understood the law, but the cases dealt with proved that people were still being paid by the state, and millions of rands were lost through the State paying out in spite of illegal actions. There was actually legislation that allowed for that. The Morake case had dragged on since 2010 and the Fifth Parliament would still have to deal with it. If loopholes were in the Bill of Rights, Parliament had to make sure that they were closed. He believed that the arm of Parliament had to be strengthened. The fact that cases were dragging on for three to five years was not acceptable.

Mr Matila said that the effectiveness of the Magistrates Commission had to be examined. The question was whether things were dealt with properly. It could be that the main problem was with individuals being charged, rather than with the system. He hoped that the MC could provide pointers about what had to be done, and what had to be changed. He pointed out that it was not, for instance, even possible to make an appointment to replace Mr Morake, because he was still being paid. He also pointed to his concern that in another recent instance, a magistrate (Mr P Hole) had to have his suspension lifted in order to deal with outstanding cases.

Mr Louw replied that although there was considerable concern, he would like to point out that the percentage of magistrates involved in misconduct proceedings was only 1%. He also wanted to clarify that Mr Morake had in fact not been paid for some length of time.

Mr Mokgobi said that the Committee and the MC had to be clear about what they would like to see happen in the future.

The meeting was adjourned.


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