The Secretary of the Magistrates Commission, presented a brief outline on the structure and operations of the Magistrates Commission, and described the legislation underpinning its functions and mandates, and how it operated in practise. The Commission was a large one, meeting quarterly, but its work was divided amongst various committees for ease of operations, and the decisions reached by those committees were regarded as decisions of the full Commission. This was followed by another presentation outlining the section of the Magistrates Act relevant to the disciplinary proceedings that the Commission was mandated to conduct. The Commission also expanded on this during the discussion sessions, pointing out that when decisions were taken by the Commission, they would be conveyed to the Minister, who would then report to Parliament, which must either approve, change (in some instances) or disapprove the Minister’s report.
The Magistrates Commission outlined in some detail a new recommendation to provisionally suspend Ms R Mahlalela from her probationary post as Additional Magistrate at Delmas. She had been under probation for 10 years as her conduct and performance did not appear to warrant a permanent appointment, despite the attempts of the Magistrates Commission to address the situation, including its arranged visit to her in Delmas (which she failed to attend), its attempts to arrange for a hearing on her medical issues, which was later aborted at her instance, mentoring that was also deemed extremely difficult, contributing to the resignation of her mentor, and subsequent attempts to mentor her by another individual. She had been offered the opportunity of taking a transfer to another court but had refused. The history of the allegations was long, and although the Commission had on a previous occasion declined to pursue charges, there were now 29 charges of misconduct being investigated. These included her failure to appear in court, her failure to attend meetings arranged, her failure to finalise court rolls and matters, her failure to hand down judgments, failure to respond to reminders and requests, and the fact that there were several debts and judgments taken against her, some of which were ruled upon by the Delmas Court itself, where she had reneged on her agreement to settle. All of this brought the bench into disrepute, created backlogs and problems for other magistrates, and negatively impacted upon the administration of justice in that court. She had known mental health issues, although these alone apparently would not have impacted upon her ability to do her work, provided that she took medication and attended psychotherapy sessions. The Magistrates Commission was pursuing the disciplinary inquiry, but had made a recommendation that the nature of the charges and their impact warranted her provisional suspension pending the outcome of the disciplinary hearing. There was no request that her pay be suspended.
Members took two stances. One group felt that there was a stigma attached to the fact of suspension, and said that there was a need for this Committee to get more information on her current mental condition, and the point was made that it would be prejudicial to take any steps against her in her current mental state. Other Members pointed out that the suspension would be beneficial to her, as it would relieve her of stress and give her time to deal with the medical issues and that it was the reputation of the justice system that was of prime importance, rather than her own reputation. The Committee did not have a quorum and requested that further information be presented, and the views expressed by Members would be recorded and brought before the full Committee again.
The Magistrates Committee then presented an update on Mr T Masinga, Additional Magistrate at Emlazi. Criminal charges were brought against him in 2009 as a result of a serious assault that he had made on his wife, who was unable to return to work for nine months, and his daughter, who was severely traumatised, and he was found guilty and sentenced to ten years imprisonment. He appealed and the appeal was turned down, although the appeal court did say that the matter could be taken on review. He had failed to avail himself of this opportunity, and so the National Prosecuting Authority apparently sought to revoke his bail and have him arrested to serve his sentence, although he had apparently said that he was intending to challenge that. Meantime, the Magistrates Commission, which was not obliged to await the finalisation of any criminal trial, decided to charge him with misconduct in that his conduct was so serious that it disqualified him from being a fit and proper person to continue to hold office. This matter resulted in the decision to remove him from office, and although he had made representations (late, but they were heard still by the Commission) the Commission recommended to the Minister that there was nothing persuasive in his response and he should be removed. Mr Masinga had been suspended by the Fourth Parliament already, without pay.
Members questioned whether Mr Masinga should not be asked to give the Committee his viewpoint, and several again said that the Committee should not make a decision before being apprised of whether Mr Masinga was intending to pursue any further remedies. A DA Member countered that if it took this viewpoint, the matter might never be finalised, and stressed that the image of the court was being tarnished by such a person remaining a magistrate. The majority of the Committee felt that a further progress report should be given in three months time.
The last matter was a report-back on Mr Hole, who had been suspended pending the outcome of a disciplinary inquiry into his conduct in his own court and towards a colleague. However, when it was realised that there were a number of part-heard sexual criminal cases that would have to be re-heard if he did not finalise them, the Fourth Parliament decided that the provisional suspension should be lifted strictly for the purposes of allowing him to deal with those cases. It was reported that he was dealing with the matters and complying with the conditions.
Magistrates Commission briefing on its operations and structure
Mr Dani Schoeman, Secretary, The Magistrates Commission, presented a brief outline of the Magistrates Commission's operations and structure. The Magistrates Commission (the Commission) was established in 1994 by section 2 of the Magistrates Act 90 of 1993 (the Act). Its main objects were to ensure that the appointment, promotion, transfer, discharge of and disciplinary steps against judicial officers in the lower courts took place impartially and that applicable laws and administrative directions were applied uniformly and correctly. It also ensured that no influencing or victimisation of judicial officers in lower courts took place.
The Commission used to be responsible for promoting training of judicial officers in lower courts and making recommendations to the Minister in this regard. However, Mr Schoeman noted that the South African Judicial Education Institute (SAJEI) had now taken over this task, although the Commission still made recommendations through this body.
The Commission was also tasked with compiling a code of conduct for judicial officers in the lower courts, which had been done, and the Code was used by the Commission in its work. The Commission further advised the Minister and made recommendations regarding administrative matters applicable to magistrates, including proposals on legislation or anything else purporting to regulate conditions and other matters relevant to magistrates. The Commission also was tasked with carrying investigations and making recommendations to the Minister on the requirements for appointment and the suspension of magistrates. The Commission must also advise, make recommendations or report to the Minister, so that s/he could then advise Parliament, on any matter which, in the opinion of the Commission, pertained to the independence of the dispensing of justice or the efficiency of the administration of justice in the lower courts.
Mr Schoeman noted that the Commission must be chaired by a Judge; at the moment the Chair was Judge Legodi, who was serving his second term. In accordance with the Act, the other members of the Commission must be the Minister or his nominee, two regional magistrates, two chief magistrates, two ordinary magistrates, a teacher of law, including a representative of SAJEI, two practising advocates, two practising attorneys, four designated members from the National Assembly, four permanent delegates to the National Council of Provinces and five “fit and proper persons” appointed by the President in consultation with Cabinet, two of whom must not be involved in the administration of justice in their ordinary course of business. This was, he thought, the biggest commission in terms of current legislation, bigger even than the Judicial Service Commission.
To aid the Commission's operations, a number of sub-committees had been established in terms of the Act. The Commission only met quarterly, so an Executive Committee (Exco) was set up to deal with urgent matters. This comprised the Chairperson of the Commission and the Chairs of the other five sub-committees, and a decision of Exco was deemed to be a decision of the Commission. Further sub-committees were:
- the Appointments Committee, which deals with the recruitment and transfer of judicial officers
- the Ethics Committee, which deals with misconduct in line with regulations 24 and 25
- the Grievances and Services Committee, dealing with complaints from magistrates concerning their conditions of service
- the Utilisation Committee, which handled the recommendations relating to the creation or abolition of posts for judicial officers in the lower courts.
He noted that the former Training Committee had been abolished as this function had been taken over by SAJEI.
Mr Schoeman reminded Members that, in terms of the Act and regulations, the Commission was primarily an advisory body, and its most important work was thus related to the filling of posts and disciplinary matters. He noted that the Ethics Committee and the Appointments Committee met on a monthly basis to generate recommendations for the Commission. Matters of particular relevance to Parliament were the recommendations for the suspension or provisional suspension of magistrates, as well as the recommendations to the President of the Independent Remuneration Commission, relating to the conditions of service for judicial officers, which were also tabled in Parliament. The next set of recommendations was likely to be tabled soon, since the consultative processes, in which the Commission was involved, had been completed. The most important involvement of Parliament related to confirmation of recommendations for suspension. Magistrates, as judicial officers, enjoyed security of tenure and could only be removed by a resolution of Parliament.
Procedures for suspension of magistrates
Mr Hans Meijer, Magistrate: Ethics division, Magistrates Commission, outlined the sections of the Act which dealt with the process for suspending magistrates.
He noted that section 13(3) set out the provisions for disciplinary matters, including removal of magistrates from office and provisional suspension. If the Commission felt that provisional suspension was necessary, pending investigation of a complaint, it would advise the Minister, who could then provisionally suspend the particular magistrate in terms of section 13(3)(a), but if this was done, then in terms of subsection (b) the Minister would have to table the reasons for suspension with Parliament within seven days, for Parliament in turn, as soon as reasonably possible, to pass a resolution to ratify or disapprove the suspension.
Once the investigation into the complaint itself was concluded, the presiding officer would makes a recommendation to the Commission on an appropriate sanction. Should there be a recommendation that a magistrate be removed, on the grounds of unfitness to hold office, continued ill-health or misconduct, which was ratified by the Commission, the Commission would then convey this recommendation to the Minister, who must suspend the magistrate from office. A report must then be tabled in Parliament, for it to confirm the decision on removal, and make it final, in terms of section 13(4).
Mr Meijer noted that section 13(4A) dealt with the remuneration of magistrates who were suspended pending the final disciplinary hearing. If the Commission recommended removal or suspension, but no recommendation was made about the suspension of remuneration, then the magistrate would continue to be paid pending the finalisation of the investigation. However, if the Commission had decided to withhold remuneration, then this became effective immediately, although a report must also be tabled in Parliament within seven days of that decision being taken by the Commission, for Parliament’s ratification, ratification with amendments, or disapproval. Once a recommendation for removal or suspension had been tabled, the Commission must submit regular progress reports to Parliament in terms of section 13(3)(f).
Mr Meijer concluded by saying that disciplinary hearings were at times burdensome, and often magistrates countered by raising several points in limine and appeals against decisions. However, the Magistrates Commission must ensure that at all times the process must remain procedurally as well as substantially fair. He pointed out that magistrates would be appointed to preside over the disciplinary inquiries.
Mr Meijer then presented the necessary reports to the Committee, for its consideration.
Report on the provisional suspension from office of Mrs R M Mahlalela, Additional Magistrate at Delmas
Mr Meijer noted that Ms Mahlalela was an aspirant additional magistrate at Delmas. A provisional suspension order had already been signed by the Minister, on 21 July 2014, which Parliament was required to confirm.
Ms Mahlalela was appointed to the lower court on 1 November 2004 but her appointment had not been finalised to date, due to her poor performance, irregularities in her work, absenteeism, refusal to execute lawful orders, major delays in handing down judgments and failure to finalise matters. Evaluations of her performance indicated that she was not a fit and proper person to hold the position of magistrate.
A preliminary investigation report had recommended she be charged with four counts of misconduct, but the Ethics Committee, in view of the lapse of time, had suggested that this not be done. This Committee, during a meeting on 25 May 2009, considered the allegations of a strained relationship between Ms Mahlalela and the Judicial Head of Office and allegations of poor performance, misconduct and prejudice. A delegation was convened, which made two visits to the Delmas Court House, but Ms Mahlalela did not attend. Mr CJ Barnard, Head of the National Judicial Quality Assurance Office, indicated, in an internal memorandum dated 30 September 2010, that Ms Mahlalela was absent for considerable periods, without explanation, and had failed to explain and therefore to convince the Commission of her fitness or propriety to hold office.
Medical reports indicated that Ms Mahlalela suffered from major depressive disorder and panic disorder. This condition did not render her unfit to work, although she required monthly psychotherapy and medication. A report dated 18 October 2011 recommended that she did not have the capacity to carry out her duties of office in an efficient manner, due to her continued ill-health.
The Ethics Committee resolved, on 1 December 2011, to refer the matter to the Appointments Committee for a recommendation whether to permanently appoint Ms Mahlalela, but the Exco had then referred the matter back for consideration of whether she should be charged with misconduct, and thus whether a separate investigation should not be held in terms of regulation 29. The Ethics Committee called for a Judicial Quality Assurance Report on her judicial work. This report had raised several concerns. Ms Mahlalela had made mistakes in criminal court which were not in line with her experience on the bench, and that negatively impacted on the right to a fair trial. Similar mistakes were also made by her in the Family Court. She had a long outstanding debt for personal phone calls made from the office's landline. Part-heard matters had taken years to finalise. She had a strained relationship with local attorneys, the prosecutors and administrative staff.
The Ethics Committee, on the basis of this report, then resolved that Ms Mahlalela serve an additional six months of probation under the guidance of a mentor, the Judicial Head of Office. She was asked to comment and although she indicated on 18 April 2013 that she would respond in a week, she took more than two months to respond. Although the report was predominantly positive, the Judicial Head of Office was unwilling to make a recommendation, partially because Ms Mahlalela had then absented herself for a total of 39 days during the probationary period, 31 for vacation, and 8 days for sick leave. The Judicial Head of Office indicated concerns about her productivity, citing statistics that noted she often arrived late, did not attend to circulars and official correspondence which must be signed, failed to finalise the Traffic Court roll on the allocated day, and generally questioned her dedication to her work.
New complaints were later lodged against Ms Mahlalela, on 24 April 2013. The Control Prosecutor averred that in one case she held an inquiry into the accused's failure to attend court and found him not guilty, despite the fact that his bail had been forfeited to the State on a previous occasion, and the warrant of arrest was not cancelled by the Magistrate. There were complaints that she had failed to finalise her inquests despite reminders, left the office without finalising her court roll, and her relationship with the Acting Judicial Head of Office had become strained. On 7 May 2013 further complaints were received that she had still not submitted the inquests, had not returned from leave on the due date of 2 May, only much later handing in a sick note covering 2 and 3 May, failed to submit her monthly statistics, which were due on 26 April, until 6 May, and had failed to respond to reminders from the Commission.
The Judicial Head of Office and sub-cluster Head asked the Commission, by letter dated 20 May 2013, to consider all the previous reports and recommendations, in order to determine whether she was indeed a fit and proper person to hold the position of magistrate. That letter also asked the Commission to consider her past behaviour, which included falling asleep in court and refusing, for a year, to comply with an eviction order from premises where a judgment was recorded against her, which resulted in the property being repossessed and sold on public auction. The Head of Office noted that her extensive vacation and sic leave, coupled with her inability to manage the court roll properly, resulted in the creation of backlogs.
The Ethics Committee resolved on 22 May 2013 to conduct an investigation in terms of Regulation 26(1), to obtain evidence to determine if there were grounds for a charge of misconduct, and to investigate the feasibility of re-opening the previous charges against Ms Mahlalela. The investigation report recommended that she be charged with misconduct. A charge sheet listing 29 allegations of misconduct was served on 5 March 2014. Ms Mahlalela responded by filing a Notice of Motion in the North Gauteng High Court, on 18 June 2014, seeking a declaratory order that the Commission's decision to charge her with misconduct was wrongful and unlawful.
By letter dated 4 March 2014, the Commission requested Ms Mahlalela to show cause why the Commission should not recommend her provisional suspension, in terms of section 13(3) of the Act, pending the outcome of the investigation into her fitness to hold office. She responded on 9 April, and the Commission was not satisfied, and recommended on 11 July 2014 to recommend the Minister of Justice and Correctional Services should provisionally suspend Ms Mahlalela.
Mr Meijer explained that this recommendation was based on the Commission’s view that the existing evidence against Ms Mahlalela was of such a serious enough nature to make it inappropriate for her to continue to perform her functions as magistrate. Seven civil judgments had been handed down against her at the very court where she served, and this impacted negatively on the good name, dignity and esteem of the office of magistrate. The same applied to her outstanding bill of R30 000 for personal phone calls from her office telephone. Her conduct, in both private and professional affairs, negatively impacted on her integrity and there had been doubts on her fitness to hold office for many years. The Commission, without anticipating the final outcome of the misconduct inquiry, also considered that the existing evidence was of a serious enough nature to justify her removal from office, should she be found guilty of the alleged misconduct.
The Chairperson said that it should be recognised and taken into account that Ms Mahlalela suffered from depression, and it would be unfair to punish someone for the effects of their illness. He therefore asked if the Commission had received a recent report from psychiatrists or psychologists, regarding Ms Mahlalela's condition.
Mr Meijer replied that the Ethics Committee had followed that route, via a regulation 29 investigation, and had requested a medical examination that would have resulted in a report to the Commission. Ms Mahlalela, however, abandoned the process via her attorney. Mr Meijer said that Ms Mahlalela was a contributory factor to the previous Judicial Head of Office’s resignation from that post, and although the Acting Judicial Head of Office was then appointed to mentor Ms Mahlalela, the results remained poor. The Commission did not have any medical evidence regarding her condition at present, but this was not due to any fault of the Commission.
Ms C Pilane-Majake (ANC) said that the case was complicated by the psychological capacity question, and it would have been better if she had been assessed. The fact that Ms Mahlalela had instituted court proceedings was another obstacle, as this matter was yet to be heard. She therefore asked what motivated the recommendation for a provisional suspension at this point.
Mr Meijer said that the motivation was that the continued presence of Ms Mahlalela on the bench of the Delmas Court tarnished the image of the court, owing to the way she was conducting herself in private and business. Her private affairs engendered media publicity, and the court roll was suffering because of her position on the bench. If Ms Mahlalela wanted to raise her medical condition as a point in limine to the misconduct inquiry, the Commission was free to withdraw the misconduct charges, or simultaneously conduct a regulation 29 investigation into her continued ill health.
The Chairperson said that he felt that Mr Meijer had not fully responded to his question. The concern remained that there were no medical reports now, and the misconduct inquiry was still to be heard, and he felt that the provisional suspension was premature. He also was unsure how the option for Ms Mahlalela to raise a point in limine answered the Committees concerns.
Mr B Bongo (ANC) said that it must be remembered that the Ms Mahlalela was a previously disadvantaged woman. He also had concerns that the suspension may be premature, because the misconduct inquiry was not finalised and she was still pursuing the matter in court. If there were concerns, perhaps the Commission should consider moving her out of the Delmas Court into another environment, or find her an alternative position away from the bench. Her personal debts and issues relating to her house were sideline issues, and should not encourage the Committee to take a premature decision. He thought that the Committee could not approve the request before receiving more information on her medical condition and the investigation.
Ms G Breytenbach (DA) raised a point of order whether there was any point in debating the matter further, since the Committee did not have a quorum and could not make any decision today.
The Chairperson replied that this was a briefing and a further meeting of the Committee would be convened to make the final decision.
Mr Vhonani Ramaano, Committee Secretary, said that he would see to the drafting of a report on matters raised by Members to summarise their concerns, which would be tabled at the meeting where the final decision would be made.
Mr W Horn (DA) proffered a different viewpoint, and said that the Committee should be mindful of the need to protect the integrity of the office of magistrate, and of judicial officers. He felt that if a magistrate conducted her financial affairs in such a way that resulted in judgments being passed against that person, moreover in her own district court, this clearly impacted on the integrity of the office. The Magistrates Act stated that there should be reliable evidence, of a serious nature, that indicated it would be inappropriate for the impugned magistrate to continue to perform her functions during an investigation. Considering the long history of the case and number of charges brought against Ms Mahlalela, he believed that it was indeed inappropriate for her to continue to perform the functions of a magistrate. The fact that Ms Mahlalela had pre-empted the misconduct inquiry by instituting court proceedings should not preclude either the Minister of Justice and Correctional Services or the Committee from provisionally suspending her, because that provisional suspension was based on the seriousness of the allegations. Lastly, he pointed out that although the Committee had an independent function, it should accept that the Minister had applied his mind before taking the decision to provisionally suspend, and, at the least, the Committee ought to hear the reasons of the Minister before ruling whether to support that decision.
Ms Breytenbach agreed with Mr Horn's sentiments. She added that the Committee should not view the suspension procedure as purely punitive. Ms Mahlalela may or may not be ill, but she was clearly out of her depth and was not managing her court roll, even with assistance. Her continued absence had a knock on effect to the public and was detrimental to the administration of justice. She added that if Ms Mahlalela was indeed unfit to hold the office, this might result in prejudice to accused persons or witnesses, which could result in even greater problems for all parties. She reminded Members that the proposal was to suspend Ms Mahlalela but to retain her remuneration, and Ms Mahlalela could use the time she was not in office to address any illnesses, which would be to her benefit. She reiterated Mr Horn's position that the Minister had made a decision on this matter after due consideration, and she would be reluctant to overturn this decision without having very good cause, particularly because the provisional suspension could be beneficial to Ms Mahlalela.
The Chairperson said that it may well be that Ms Mahlalela’s poor relationship with her previous Judicial Head of Office, and the fact that she had been on probation for ten years, could well be contributing factors to her ill health. He urged Members to remember that the law was not merely a dry statute, but was underpinned by values that required consideration to be given to the human element, rather than purely technical considerations. He agreed that the Committee needed to interact with the Minister, as it should not assume that the Minister had made the correct decision, and the Committee should interrogate the merits and demerits of the case.
Ms Pilane-Majake added that she was concerned about what the Magistrates Act said about the suitability of Ms Mahlalela, as an insolvent, to hold office. She agreed with the Chairperson that the Committee needed to interrogate the matter further, and engage with the Minister should it decide not to support his decision. It was also important to consider whether the suspension was without pay, because the Commission had the power to withhold remuneration, a point that the Committee could not decide upon. She further expressed concern that this matter had been going on for too long with little being done to remedy the situation, through training or similar interventions. She felt that the continuation of Ms Mahlalela’s probation for ten years was irregular and possibly even an unfair labour practice. She quipped that in Women’s Month, this matter deserved extra caution. She reminded the Committee of a similar case concerning another magistrate in Upington, and it would be interesting to see what percentage of magistrates were women, and how many of them were experiencing these problems, which might indicate that a different perspective must be applied to this case.
The Chairperson asked the Commission to clarify if Ms Mahlalela had current debts, or had been declared insolvent.
Mr Meijer replied that she had not been declared insolvent, but had had several civil judgments recorded against her for debts that she had agreed to settle, but failed to settle. It was this factor, coupled with her poor work performance and absenteeism, that led to the recommendation for provisional suspension. He emphasised that over the past ten years the Commission had tried really hard to mediate the situation, to the extent that members of the Appointments and Ethics Committees had traveled to Delmas, although this was fruitless. Ms Mahlalela would always appoint an attorney, and had adopted this delaying tactic again when challenging the lawfuless of the misconduct inquiry, although it was in her interests that the matter should in fact be settled timeously.
Mr Meijer noted Mr Bongo’s points and said that Ms Mahlalela had been appointed to the Delmas Court in order to enhance transformation. The Commission had already offered her the opportunity to move to Nelspruit, for additional training and mentorship, but she had refused. Furthermore, he pointed out that when a person had taken an oath as a judicial officer she could not simply be reallocated to perform other functions. He added that, apart from the reputational damage, her continued presence on the bench of the Delmas Court was over-burdening the other magistrates. If the provisional suspension was allowed, the Commission would be able to appoint an acting magistrate to relieve the pressure. Finally, he reiterated that the Commission was of the view that the allegations of misconduct were so serious that, if she was found guilty of these at the disciplinary inquiry, she would be removed from office.
Mr Schoeman added that, in his capacity as Secretary of the Commission, he had been present when this matter was deliberated. He wanted to assure the Committee that the concerns raised now by Members had also been raised and fully aired by the Commissioners. The Commission had tried its best to resolve the issue and assist Ms Mahlalela, including by not pursuing the first misconduct charges, by trying to initiate an enquiry into her health, by mediation and the judicial quality assessment. However, whilst the Judicial Quality Assessment report was being compiled, further complaints had come to light, and the Commission had thus resolved that the matter would best be resolved by acting on the evidence presented to it, and pursing a misconduct inquiry. The regulations required that the process be fair. Since the Commission was now faced with pending litigation, the question arose whether it was in the interests of the administration of justice and the public who used the Delmas Court to allow Ms Mahlalela to remain on the bench until that litigation was finalised, and the Commission took the view that it was not, and that she should rather be provisionally suspended. He emphasised that there was not a suggestion that her remuneration be withheld. The key concern should be whether her continued presence on the bench was desirable and in the interests of justice. He pointed out that attorneys appearing before her had received instructions from her creditors to pursue separate debt actions against her. He re-emphasised that for all these reasons, and in the interests of justice, the Commission was recommending her provisional suspension, with full remuneration, until the misconduct inquiry was completed. He shared concerns about her health issues but reiterated that this was a point that Ms Mahlalela could raise, personally or through her legal representative, during the misconduct hearing, and it would be separately adjudicated upon by the presiding officer.
The Chairperson said that he believed the determination of fitness to hold office should be done at the time of appointment. If issues arose later, then they clearly indicated the need to build capacity. The Commission had not produced evidence of its attempts to develop Ms Mahlalela. This was particularly important since she was from a previously disadvantage background. Factors such as transformation needed to be taken into consideration, and the administration of justice could not be the sole criterion. He said that all the steps the Commission had taken so far had been fair, but questioned why Ms Mahlalela was expected to raise the health aspect herself. There was some stigma attached to the misconduct inquiry and the provisional suspension. He said that it may be advisable for the court process to be completed first, because if the court decided not to support the Commission’s decision to conduct the misconduct inquiry, and Parliament had already ratified the provisional suspension, it could bring Parliament into disrepute. He asked for comment on that point.
Mr Schoeman reminded the Committee that the Commission was not a decision making body. It merely tabled these reports to advise the relevant body. The recommendation for provisional suspension now being tabled was a separate issue from the Commission’s decision to charge Ms Mahlalela with misconduct. The Court application related to the misconduct inquiry, and there would be no effect on that should the Committee ratify or refuse the provisional suspension.
The Chairperson quoted from the report to the Minister, noting that although Ms Mahlalela suffered from major depressive disorder and panic disorder, this condition did not necessarily render her unfit to work, although she required monthly psychotherapy and medication. He reiterated his viewpoint that it was the fact that she was stationed in Delmas may have caused her ill-health and any attempts to help here there would, he believed, be unlikely to succeed. Any process allowing her, whilst she suffered from the condition, to be put on trial was inhumane. He thought she needed to be taken out of the situation, but was concerned that suspension carried a negative stigma.
Ms Pilane-Majake noted that the Committee did not have a quorum. The Committee would make its decision on the basis of a report yet to be tabled, which would include concerns around her ill-health. Mr Schoeman had correctly indicated that the Committee had no power to interfere with the misconduct inquiry, but since the issues had been presented, the Committee could be expected to give its input. She was concerned that there were many vacancies in the magistracy and the Commission needed to focus on retaining the magistrates already in office.
Mr Horn said that the Committee was apparently more concerned about the impact of Ms Mahlalela’s health on her fitness to hold office than she was herself, and reminded Members that the Commission had attempted to institute a Regulation 29 enquiry into her ill health, but she was the one causing it to be aborted. He felt it was improper for this Committee to reach its own conclusions on the causes of the depression and the impact of that on her ability to hold office, rather than looking at the evidence of her actions. He heard Ms Pilane-Majake’s view that keeping Ms Mahlalela on probation for ten years might amount to unfair labour practice, but reminded her that the probation process was meant to determine a prospective magistrate’s fitness to hold that office. It was Ms Mahlalela’s own actions that led to no permanent appointment being made. He repeated his suggestion on the need to engage with the Minister before the Committee took a decision.
Mr Meijer offered to submit the medical reports from 2011. The lapse of time since then made it difficult to determine whether she still suffered from the condition.
Ms Breytenbach said that whilst she agreed with the Chairperson that it was not correct to put an ill person on trial, it was equally not correct to retain an irrational person on the bench, as this would not only be detrimental to the administration of justice, but also against her own interests.
Mr Bongo said that the Committee was in general agreement with what was presented, but it would be preferable to exhaust all aspects fully. He agreed with the Chairperson that the law may be applied theoretically correctly yet ignore the human element. This was why he had posed other options, including transfer to another branch or a transfer from the bench.
Ms Pilane-Majake agreed that it would be useful to consider alternative remedies.
The Chairperson said that a good case for considering all avenues had been made out and urged the Committee to consider alternative remedies. The Committee was not in a position to make a decision at present.
Mr Horn and Ms Breytenbach asked that it be placed on record that each supported the Minister’s decision for a suspension.
The Chairperson said that this was premature, as the Committee still needed to engage with the Minister and have all relevant information before it.
Report on the suspension of Mr TM Masinga, Additional Magistrate at Emlazi
Mr Meijer presented the case against Mr Masinga. The Minister of Justice and Correctional Service had recommended the removal of Mr Masinga from office, in terms of section 13(4)(a)(i) of the Magistrates Act.
Mr Masinga had appeared in the Durban Magistrate’s Court on 19 March 2009, on a charge of contravening section 17(a), read with section 7, of the Domestic Violence Act 116 of 1998. He was alleged to have assaulted his wife with the blunt part of an axe, kicked, and hit her with open hands, and threatened to kill her, and that he also assaulted his daughters. The matter was remanded until 14 April 2009 when the case was transferred to the Regional Court. Mr Masinga was additionally charged with attempted murder and two counts of assault. The Regional Court, Durban, convicted him and sentenced him to ten years imprisonment. He appealed this decision in the Petermaritzburg High Court, which adjourned the matter sine die and granted leave that the decision could be taken on review by no later than 20 April 2013.
On 13 June 2014, the Magistrates Commission was informed that the review proceedings had, at the instance of Mr Masinga’s attorney, been removed from the court roll on 22 May 2014, as he had not yet filed a replying affidavit. The Director of Public Prosecutions filed a notice of bar should Mr Masinga not file his replying affidavit by 9 June 2014.
On 8 February 2010, the Commission had charged Mr Masinga with three counts of misconduct, served the relevant notices on him. The proceedings commenced on 26 August 2010. Requests by the defence for postponement and the raising of a number of points in limine, resulted in the hearing being seriously delayed. The presiding officer found Mr Masinga guilty of misconduct on 22 April 2014, and recommended, in terms of regulation 26(17)(b), that he be removed from office in line with section 13(4) of the Magistrates Act.
Mr Masinga was then given the opportunity to make written representations to the Commission within 21 working days. Representations were lodged after the 21 day period, but the Commission still accepted them. After considering Mr Masinga’s representations, the Commission resolved to convey to the Minister its view that the recommendations of the presiding officer should be accepted and that Mr Masinga should be removed from office in terms of section 13(4)(a)(i). The Commission believed that the conduct of Mr Masinga was of such a serious nature that it justified his removal from office, as it rendered him unfit to hold the office of magistrate. Furthermore, since Mr Masinga appeared to have failed to pursue the review of the criminal proceedings, this may result in the Director of Public Prosecutions launching an application for his bail to be cancelled, which would lead to his imprisonment.
Mr Meijer said that this Committee must now determine whether or not to confirm the removal or reinstate Mr Masinga. He had been provisionally suspended already in terms of section 13(4)(a).
Mr Bongo said that as the criminal matter review was not finalised, Mr Masinga ought to be given the time to see the end result. He would not like the Committee to take a decision before the criminal matter was finalised. Mr Masinga had a constitutional right to pursue all his legal remedies and only after this was done would Mr Bongo be comfortable supporting a resolution to remove him from office.
The Chairperson said that as Mr Masinga had been provisionally suspended by the Fourth Parliament, there was no need to rush the ratification of his removal or reinstatement, if there was still a possibility that he could successfully challenge the charges against him.
Mr Meijer drew the distinction that the criminal case and disciplinary hearing were two completely separate processes. He reminded that the Committee that the burden of proof in criminal matters demanded proof beyond a reasonable doubt, while in the disciplinary matter the burden of proof was the balance of probabilities. The disciplinary enquiry was conducted by a presiding officer, who was also a judicial officer, who had found Mr Masinga guilty of misconduct, and had recommended his removal from office. It was then the function of the Magistrates Commission to make a recommendation to the Minister. The Minister could not exercise any independent discretion on this point, but must merely table a report in Parliament, which then must decide whether to ratify the removal. Regardless of whether Mr Masinga successfully challenged the criminal charges, the outcome of the disciplinary hearing would remain unchanged.
Mr L Mpumlwana (ANC) asked if the decision of the disciplinary hearing was final. Secondly, he wanted to enquire into the position of Mr Masinga’s wife the complainant, and her family. He wanted to know if there was any provision for the impugned magistrate to make representations to the Committee itself, so that it may interrogate the issue fully and ensure Mr Masinga’s side of the story was heard.
Mr Horn wanted to raise a technical point, and noted that his copy of the report had not been signed, and wondered whether this was a problem for compliance. He said that it was within the power of Parliament to pass a resolution but the test for the propriety of the decision of the disciplinary hearing was rationality. He said that he did not think it was rational to question the processes of the Commission at this point in time. The provisional suspension of Mr Masinga had been ratified in the Fourth Parliament. A disciplinary hearing of the Commission found Mr Masinga guilty. He cautioned that the due process of the Commission must not be subverted to the reservations of the Committee.
Mr Bongo said that this matter was simpler than this; he had made the point that the Committee could make a decision once Mr Masinga had exhausted all legal remedies.
Ms Christine Silkstone, Content Advisor to the Committee, said that the previous Committee had felt strongly that the disciplinary hearing should not have to wait for the criminal procedure to be finalised.
Mr Mpumlwana said that he was unsure whether the Act required the Committee to ‘rubber stamp’ the Commission’s decision. In order to come up with a rational decision, this Committee needed all the facts.
The Chairperson then reiterated the concerns of Mr Bongo, saying that Mr Masinga’s recourse included challenging the Commission’s decision, and it would be unconstitutional to deny him this opportunity.
Ms Breytenbach said that Mr Masinga was sentenced in 2011 to ten years imprisonment, which was an indication of the severity of the attack perpetrated by Mr Masinga. It was now 2014, and she asked how much time the Committee should afford Mr Masinga to pursue his remedies.
Mr Meijer repeated that Mr Masinga had taken the criminal matter on appeal. The appeal court dismissed his appeal but granted leave for a review of its decision on this point. Mr Masinga failed to pursue that review, within the time allocated, and it was dismissed. The National Prosecuting Authority then moved for a warrant of arrest to be issued, although Mr Masinga had indicated he intended to challenge this.
Mr Meijer then outlined the procedure for the disciplinary hearings. Once the presiding officer had reached a decision, Mr Masinga had 21 days to make written representations as to why a decision to remove him should not be taken. Mr Masinga missed the deadline, but the Commission nonetheless had been prepared to consider his late representations. Mr Meijer emphasised that the matter was very serious. The nature of the injuries inflicted by Mr Masinga resulted in his wife being unable to work for nine months, and resulted in severe trauma to his daughters. The attack was precipitated by his wife challenging Mr Masinga on the fact that he allegedly had an extramarital affair. The two were now involved in divorce proceedings, and Mrs Masinga had moved to Johannesburg.
He noted that the disciplinary hearing had been presided over by a magistrate, and in this case it was the Chief Magistrate of Pretoria. Mr Masinga could have taken the proceedings on review, but he did not, although he had filed representations.
Mr Meijer noted Mr Horn’s question on the technicalities and said that the report had been signed on 14 July, and that it was compliant.
In answer to Mr Mpumlwana’s concerns, Mr Meijer noted that Parliament may be required to merely rubber stamp the Minister’s decision, but Parliament could decide whether to ratify that decision or reinstate Mr Masinga. The question for Parliament was whether Parliament should accept that a person who had attempted to murder his wife in front of his children was the type of person who Parliament wanted to have sitting on the bench.
The Chairperson repeated that Mr Masinga could have taken the matter on review but did not. The National Prosecuting Authority was seeking a warrant of arrest, but the Committee was not been informed whether this had been successful, for it could have failed if Mr Masinga had instituted review proceedings, and there was no way for this Committee to conclude whether Mr Masinga had abandoned the opportunity to take the disciplinary proceedings on review. He said that the Committee would be on shaky grounds if it were to take an uninformed decision. He reminded the Committee that there was no urgency. Mr Masinga was already provisionally suspended, and was not being paid.
Mr Horn said that his reading of the Act indicated that there was no room to uphold the suspension at the present stage, because the Act specified that Parliament, after receiving a report from the Minister, must either uphold the permanent suspension or reinstate the magistrate, which left the Committee with two options.
The Chairperson replied that the Committee would be within its rights to allow the suspension to continue.
Mr Mpumlwana asked for the relevant sections to be read out, to determine if the Committee had any discretion.
Mr Meijer responded that section 13(4)(b) read: “Parliament must, as soon as was reasonably possible, pass a resolution as to whether the restoration to his or her office of a magistrate so suspended was recommended or not”.
The Chairperson questioned what the Committee should do if it believed that the report from the Commission had not given sufficient motivation.
Mr Schoeman said that the Committee seemed to have misunderstood the distinction between the two completely different processes. The criminal process followed a path from the police investigation, to the National Prosecuting Authority prosecution, and a trial in court, in terms of the common law and the Criminal Procedure Act. The disciplinary process followed the Magistrates Act and Regulations. Where the Commission learned that a magistrate was alleged to have committed a serious offence, it was incumbent upon the Commission to conduct its own investigation and decide whether or not to charge the magistrate with misconduct based on the fact of the criminal conduct. This was what happened in the present case, and the complainants in the criminal trial had also been called upon to give oral evidence at the disciplinary hearing. He emphasised that the outcome of the misconduct hearing was not based on the criminal trial outcome. It was based on the first hand evidence presented at the hearing.
The Chairperson said that the disciplinary hearing and criminal trial arise out of the same set of facts. In both instances, Mr Masinga may still be able to pursue further remedies.
Mr Schoeman agreed that the Magistrates Act specified that a magistrate found guilty of misconduct in a disciplinary inquiry would have the option to take this decision on review. This was to ensure that the hearing had been procedurally fair. Several years ago, the Commission had taken a decision that it was not precluded from awaiting the outcome of any criminal trial before exercising its powers to hold a disciplinary inquiry, in terms of its own legislation.
The Chairperson said that even if was assumed that the criminal process was concluded, Mr Masinga still had a right to challenge the findings of the disciplinary hearing. The Committee should not act on speculation.
Ms Pilane-Majake believed the approach of the Commission was correct, but it was important for the Committee to not pre-empt processes. Even if the conclusion seemed obvious, it was not the right time make a final decision had not yet come.
The Chairperson asked Mr Meijer for further comment on the opportunity to be heard.
Mr Meijer replied that a procedure was set out for written representations, which allowed the magistrate an opportunity to be heard. He wanted to clarify the confusion around the suspension. He confirmed that the provisional suspension was not granted pending the outcome of anything else. The gravity of his actions against his wife and children, which led to the disciplinary inquiry, also prompted the suspension, on the basis that he was not a fit and proper person to be on the bench. Mr Masinga had presented a defence at the disciplinary inquiry, including the calling of witnesses, and he had made written representations on the finding of the presiding officer.
Ms Pilane-Majake said the outcome of the disciplinary hearing would not alter the outcome of the criminal proceedings.
Mr Meijer agreed and said that the disciplinary hearing could even be conducted before the trial. In this case, the presiding officer ruled that the Commission had satisfied the burden of proof in proving that Mr Masinga was not a fit and proper person.
The Chairperson said that it would be a sad day if Parliament was found to have made an error of judgment because it had tae a decision without allowing all potential remedies to be exhausted, and this would be the quickest way to undermine Parliament. He asked who would be prejudiced in this instance by this Committee postponing the decision. The magistrate had been suspended and the Committee wanted to wait for all processes to be exhausted before making a decision.
Mr Mpumlwana asked what would be a reasonable time for a final decision. He believed it was necessary to hear Mr Masinga’s viewpoint, because the Magistrates Commission could have erred.
Mr Bongo said that the all the Committee was asking was whether there were any legal remedies that Mr Masinga could still pursue.
Mr Horn said that, in theory, there was always the possibility to pursue legal remedies right up to the Constitutional Court, and if this was the Committee’s viewpoint then the Committee may never be in a position to make any decision. He believed the Committee had received sufficient information to reach a decision, particularly since no review application was lodged in respect of the disciplinary hearing. The provision in the Act that Parliament must make a decision “within a reasonable time” meant that it must act to ensure the integrity of the magistracy and if Parliament kept the matter in abeyance, particularly where there were no indications of any fault in the hearings process, it would actually be undermining the standing of the magistracy. He therefore appealed that the Committee accept the indications by Mr Meijer that Mr Masinga had chosen not to pursue the review process, and take a decision on the matter.
The Chairperson said that nobody was challenging the fairness of the disciplinary process. However, the point was made that no evidence had been placed before this Committee that Mr Masinga was not intending to pursue the matter further at some point. That being so, the Committee was not yet in a position to ratify the suspension or restore Mr Masinga to office.
Mr Horn asked when the Committee would ever be in a position to make the decision, if this was the stance.
The Chairperson replied that the National Prosecuting Authority would know if a review had been instigated and could inform the Committee of this, to enable the Committee to make a decision. He repeated that the Committee could not afford to make a mistake simply because it had not taken the necessary time to gather all information. He suggested that the final decision should be held over until all the information was with the Committee. He also wanted to assure the Commission that the Committee respected its work and opinions, and was not sympathetic to allowing abusive people to dispense justice.
Mr Meijer asked for clarity whether the Committee was seeking information on whether Mr Masinga was intending to review the criminal or the disciplinary proceedings.
The Chairperson said that a progress report on both issues should be tabled after three months.
Report on the upliftment of the provisional suspension of Mr PS Hole, Magistrate at Kimberly
Mr Schoeman said that this was the third report concerning Mr Hole’s progress in finalising the partly-heard cases dealing with sexual offences. He reminded the Committee that Mr Hole had been provisionally suspended on the basis of complaints relating to his conduct in court, but later, when it was realised that there were several part-heard matters he was handling, which would have to be reheard if he was not permitted to finalise them, the Committee had agreed that the provisional suspension be uplifted to allow him to deal with those cases only, as there would be prejudice to the witnesses and complainants otherwise.
There was now a report available that noted that Mr Hole had managed to finalise 17 of the 26 outstanding matters. Some of those remaining outstanding matters were on special review. The Commission was receiving monthly reports from the Regional Court President, and was satisfied that Mr Hole was conducting himself and his cases properly, and complying with all the conditions imposed by Parliament, relating to the upliftment of the provisional suspension for the purpose of completing these matters.
Ms Pilane-Majake said that it was good to see that Mr Hole was complying with the conditions, because he was the only person available to deal with these sexual offence matters, and the Committee had been concerned to know whether he was in fact complying with the conditions.
She asked that, in future, before the Commission considered suspending a magistrate, it should ensure that there was sufficient alternate capacity at the court to cover the cases of the magistrate suspended, and this was a matter that the Commission should specifically report on in the future.
The meeting was adjourned.
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