Magistrates Commission: briefing on suspension of Magistrates from office

Meeting report

Opening Remarks
The Chairperson welcomed the Members and thanked them for their attendance, which indicated an exercise of their electoral mandate. An additional progress report from the Magistrates Commission would be added to the meeting’s agenda.  and requested the members of the Committee to adopt the day’s agenda.

Mr J Julius (DA, Gauteng) asked about the adoption of the Committee’s minutes.

Mr Gurshwyn Dixon, Committee Secretary, responded that the adoption of the minutes would be engaged with at another meeting because the Members had not had an opportunity to go through all the minutes from the previous meetings.

Ms G Manopole (ANC, Northern Cape) responded that Mr Dixon’s response was insufficient, because if the Committee was going to adopt the agenda it would do so without addendums. Currently it did not provide for the minutes, so they would not be considered at the meeting. She asked for the agenda to be corrected and additions made thereto. 

Ms T Wana (ANC, Eastern Cape) proposed that the agenda be adopted as it had been presented to the Committee, because it was currently dealing with the presentations from the Magistrates Commission, and that had nothing to do with the adoption of minutes.

Mr M Mhlanga (ANC, Mpumalanga) proposed the addition of an item for the adoption of the minutes so that they could be dealt with after the presentations from the Magistrates Commission. The Chairperson seconded his proposal to table the minutes under item 6(a) of the agenda.

Mr M Mohapi (ANC, Free State) requested clarity on whether the day’s meeting was an ordinary sitting of the Select Committee, or a special meeting convened specifically to deal with the issues of the Magistrates’ Commission. 

The Chairperson said that it was an ordinary Select Committee meeting, where the Members were getting a briefing on the affairs of the Magistrates Commission.

Mr Mohapi responded that since it was an ordinary Select Committee meeting, the minutes were supposed to be added to the agenda and tabled at the day’s meeting.

Ms T Mokwele (EFF, North West) requested that the minutes be tabled at the next Select Committee meeting in order to give ample time and attention to deal with the issues of the Magistrates Commission.

Ms Manopole requested the Committee’s administrative team to make the minutes available to the Members in advance so that they could familiarise themselves with the minutes and avoid a waste of time over the issue of minutes at future meetings. 

Magistrates Commission: Briefing on suspension of Mr M Masinga
Mr Hans Meijer, Magistrate, Magistrates Commission, tabled the presentation on the suspension of Mr M Masinga. He said that on recommendation from the Commission, a magistrate should be removed from office on grounds of misconduct, amongst others; the Minister must suspend the particular judicial officer from office and a report must be tabled before parliament within 14 days on the same grounds.

Mr Masinga had been suspended from the Magistrates office on 17 July 2014, and the report to parliament was filed on the same day, thus complying with the provisions of the Magistrates Act. The onus was on parliament, in terms of section 13(4) of the Magistrates Act, to pass a resolution to either restore or dismiss Mr Masinga from the Magistrates office. Mr Masinga was criminally charged with the attempted murder of his wife and assault of his three daughters, and had appeared in court on 19 March 2009. He was found guilty and sentenced to ten years imprisonment, which he appealed. The matter was placed on review and was dismissed, but he had appealed and the case would be reviewed by the full bench on the High Court in April 2015.

On the other hand, the Magistrates Commission had commenced with a misconduct inquiry in which Mr Masinga was charged and notified of three counts of misconduct. He was given a 21-day period to work on his defence and the opportunity to examine all the Commission’s witnesses. However, the misconduct inquiry had found him guilty of misconduct and the presiding officer of the inquiry had recommended to the Minister that Mr Masinga be removed from office as a Magistrate. The Commission was of the view that the charges brought against Mr Masinga were very serious, hence justifying his removal from office.  Mr Masinga did not file his appeal timeously, which was why the matter was noted and set for hearing by the Director of Public Prosecutions (DPP) in April 2015. He said that there was a possibility of the DPP launching an application to have his bail cancelled, resulting into his incarceration, the effect of which rendered him unfit to hold the office of Magistrate.

Mr Masinga was on suspension and not receiving any remuneration. The Minister had complied with the legislative requirements on Mr Masinga’s dismissal by suspending him and filing a report on his dismissal on the same day to parliament, which was within the 14-day period prescribed by the Act.

Discussion
Mr Mohapi asked for the purpose of the submitted report to Parliament. Was it meant to inform the Committee, or did the Magistrates Commission need Parliament to make a resolution on the issues presented. The presentation had disclosed confusing statements which required clarity. Item 1 of the presentation stated that the purpose of the report was to inform Parliament on the suspension from office of Mr Masinga, while item 4.3 stated that Parliament must, as soon as is reasonably possible, pass a resolution as to whether or not the restoration of his/her office of the Magistrate so suspended, is recommended. What was the purpose of the presentation to parliament? He requested for clarity on whether Mr Masinga’s not receiving remuneration due to suspension was provided for under the Labour Relations Act, or was a determination by the Magistrates Commission.

Magistrates Commission’s response
Mr Meijer said that once the Magistrates Commission recommends that a magistrate must be removed from office, the Minister must suspend the particular magistrate from office in terms of section 13 of the Magistrates Act. The presented report was to inform Parliament that the Minister had already suspended Mr Masinga from office on 17 July 2014. The report was filed to parliament for it to make a resolution on whether or not to confirm the suspension of Mr Masinga. Mr Masinga was provisionally suspended from the Magistrate’s office, pending an investigation into his fitness to hold office. On completion of the investigation, he was found guilty and unfit to hold office. The onus is now on parliament to either confirm his suspension or restore him into office. The provisions of the Labour Relations Act do not apply to Magistrates. When Mr. Masinga was convicted of attempted murder, the Magistrates Commission stopped remunerating him, and it needs this decision to be confirmed by parliament. He said that there was authority in the Constitutional court which allowed the Magistrates Commission to withhold magistrate’s remuneration even when they are provisionally suspended from office. 

Discussion
Ms Manopole commended the Commission on the summarised nature of the presentation presented to the Committee. She requested clarity on whether the cancellation process of Mr Masinga’s bail had started, and how speedily the whole process would be finalised before Parliament went ahead and made a resolution on the matter at hand. The Committee had confidence in the Magistrates Commission to execute their mandate. However, Mr Masinga’s case had been lagging since 2009 and required to be immediately addressed.  Failure to do so would mean that the system was failing the South African general public. She said there was a shortage of magistrates in South Africa and it was absurd that there were Magistrates out there that were not doing their job, thus resulting into misconduct trials like the one at present.

Magistrates Commission’s response
Mr Meijer asked Members to distinguish between Mr Masinga’s criminal trial and the disciplinary inquiry. The two were two completely different processes. Even if Mr Masinga had succeeded in the criminal appeal, the conviction of misconduct from the Magistrates Commission would still stand, because the allegations brought against him of attempted murder were so serious that they rendered him unfit to hold the office of Magistrate. Thus the Commission had recommended having him removed from office, irrespective of whether his bail would be cancelled or not. Mr Masinga had referred his matter to the Appeal Court. The judges of the Appeal Court had given him a prescribed period to file his supporting affidavit, which he had failed to do, so the Department of Public Prosecutions (DPP) had re-instituting charges against him. Currently the Magistrates Commission was not sure of the DPP’s course of action regarding Mr Masinga’s bail, but his matter was set to be adjudicated in April 2015, which rendered the cancellation of the bail impracticable with a date set for the case hearing.

Discussion
Ms Wana said that the charges brought against Mr Masinga did not warrant him to be a magistrate. The mere fact that a public officer had been accused of attempted murder was grounds for dismissal from the magistrates’ office. She moved that Mr Masinga should be dismissed from the Magistrates office.

Ms Manopole seconded the proposal for Mr Masinga’s dismissal and added that as a Select Committee, they approved the Commission’s recommendation of Mr Masinga’s dismissal.


Magistrates Commission: Briefing on provisional suspension from office of Ms R Malahlela
Mr Meijer said that the purpose of the presentation was whether or not to confirm the Minister’s decision to provisionally suspend Ms Malahlela from office as a Magistrate pending the Commission’s investigation into her fitness to hold office. Ms Malahlela has not been found guilty of unfitness to hold a magisterial office. However, the Magistrate’s Commission was of the view that pending her misconduct inquiry, she should be temporarily excused from office.

Ms Malahlela, aged 51 years, was an aspirant additional magistrate on probation at the Delmas District Court. She was appointed to a lower court bench on 1 November 2004. Her appointment could not be finalised because of her poor performance, irregularities in her work, absenteeism from office, refusal to execute lawful orders, major delays in judgments, failure to finalise matters and poor utilization of court time, amongst others. An evaluation report indicated that she was not a fit and proper person to take up office as a magistrate. The matter was transferred from the Appointments Committee to the Ethics Committee of the Commission.

The Ethics Committee recommended that a preliminary investigation be conducted in terms of the Commission’s regulations and the report suggested that she should be charged with four counts of misconduct. The Ethics Committee considered the preliminary report, but resolved not to charge her with misconduct due to lapse of time and considered holding a meeting with her to resolve the issues at hand. On two separate occasions, the scheduled meetings with Ms Malahlela and her judicial head by the delegations from the Appointment and Ethics Committee were unsuccessful, and had resulted in a deterioration of the issues at hand. On a separate occasion altogether, Mr C Barnard, Chief Magistrate, Head of the National Judicial Quality Assurance Office (Pretoria) indicated in an internal memorandum dated 30 September 2010, that Ms Malahlela was for considerable periods absent from office and in default to explain her absence.  She could not satisfy the Commission that she was a fit and proper person to be appointed as a magistrate. On the hand, medical reports indicated that she suffered from major depressive disorder and panic disorder. The condition did not render her unfit to work, but she had to continue with monthly psychotherapy.

A quality assurance report was made on Ms Malahlela, which indicated that she had made mistakes in court which were not in line with her experience on the bench, given the fact that she had been appointed in 2004, and had a negative effect on the right to a fair trial where she did not explain the basic rights to the accused during a trial. Similarly, it was alleged that she made mistakes in the family court, not reflecting her years of experience. She had a long outstanding debt for private phone calls made on the office landline and had a tendency to absent herself on Monday’s, which extended to Wednesday’s, amongst others. The previous judicial head, before her retirement due to ill-health, made a report in which she was not prepared to make a recommendation for Ms Malahlela’s appointment as a magistrate of because, amongst others, Ms Malahlela often arrived late at work, did not attend to official correspondence on time, and her dedication to her work was questionable.

Ms Malahlela had a strained relationship with her judicial head of office, and did not want to take any instructions from her. There were several incidents which showed that it was not proper for Ms Malahlela to hold office during the investigation into her misconduct. There was also an allegation that she fell asleep in court, did not honour her bond payments, which had led to the repossession by the bank of her house in Delmas, which got sold off in a public auction -- and despite a high court order to vacate the premises, she had not done so for a year, and when she left the house it was in a neglected and damaged state. She took extensive vacations and sick leave, did not attend to case floor meetings, and could not cope with her normal court role, so the Commission had had to get an extra magistrate to attend to the backlog of her cases.  She often took off from work during official working hours.

On 22 May 2013, the Magistrates Commission resolved to conduct another preliminary investigation in order to obtain evidence on whether there were any grounds for the charge of misconduct against Ms Malahlela. The Ethics Committee recommended to the full Commission that Ms Malahlela be charged with 29 charges of allenged misconduct, and these charges were accepted by the full Commission and served on her on 5 March 2014.

On 18 June 2014, she filed a notice of motion in the North Gauteng High Court, citing the Magistrates Commission and the Minister of Justice as the first and fourth respondent respectively. She applied for an order of the court to declare the Commission’s decision to charge her with misconduct to be wrongful and unlawful. This application is still to be heard, although consultations with counsel have already taken place on behalf of the Minister and the Commission.

Having considered Ms Malahlela’s response when she filed a notice of motion against the Minister, as well as the Magistrates Commission, the Commission on 11 July 2014 resolved that Ms Malahlela be provisionally suspended from the Magistrate’s office in terms of Section 13 of the Magistrates Act, pending the misconduct inquiry into her competence to hold office. The Commission was of the view that the existing evidence against Ms Malahlela was of such a serious nature to justify her suspension while the investigation was being conducted. He said it was improper for a judicial officer who was being investigated of misconduct in a judicial office to sit on the bench of the judicial office before the conclusion of her investigation.

The judgments against Ms Malahlela impacted negatively on the judicial office, as well as the esteem of the office of magistrates in the administration of justice. Further, her excessive private debt resulting from private phone calls made from the official office lines had an equally negative effect on the magistrate’s office. It had been in doubt for many years whether she was a fit and proper person to be appointed as a magistrate, because her conduct in both her private and professional capacity reflected negatively on her integrity.

From the Commission’s recommendations, the Minister provisionally suspended Ms Malahlela on 17 July 2014 in terms of section 13(3) (b) of the Magistrates Act and on the same day the Minister filed a report on the dismissal to Parliament, as required by law. The onus was now on Parliament whether or not to confirm the provisional suspension of Ms Malahlela, pending the investigation into her fitness to hold office as Magistrate.

Discussion
Mr G Michalakis (DA, Free State) wondered whether Ms Malahlela was going to add the Committee Members to the list of respondents in her application to the Northern Gauteng High Court. He requested clarity on who was responsible for the lapse of time which had resulted in the Ethics Committee not initially charging Ms Malahlela with misconduct under item 2.3 of the presentation. He inquired whether Ms Malahlela was being remunerated while she was on provisional suspension, and how long the investigation into her misconduct would take before resulting into her final suspension because the last thing he wanted was her sitting at home for a very long time pending investigation while receiving a salary for doing absolutely nothing.

Mr Mohapi asked about the duration of the probation period and when the matter had been referred back to the Ethics Committee, as indicated under item 2.9 of the presentation. What were the reasons for the two unsuccessful scheduled visits to Ms Malahlela, and the consequences of the lapse of time which resulted in no charges being brought against her by the Ethics Committee under item 2.3 of the presentation?

Magistrates Commission’s response
Mr Meijer responded that the Ethics Committee, having received the first preliminary report which recommended that Ms Malahlela be charged with misconduct, resolved that due to the strained relationship between Ms Malahlela and her then judicial head of office, a visit was a more appropriate optional strategy to try and resolve the problems that existed amicably, hence the two scheduled visits under item 2.4 of the presentation. Two delegations from the Appointments Committee and the Ethics Committee were sent to try and get the two ladies together at a round table discussion to try to resolve their problems. However, they had both appointed attorneys and never actively participated in the discussion, that is, no discussion could actually take place.

The relationship between the two had deteriorated to the estent that there were even threats from Ms Malahlela against her judicial head. He said that the threats were only allegations, but had resulted in a request by the judicial head to the Minister to be granted early retirement from the judicial office. This had contributed to the delay in charging Ms Malahlela, which was later abandoned by the Ethics Committee. Further, arrangements for the round table discussions took almost two years to be arranged, without positive results, which also contributed to the delays in the charging process. The Commission had then requested the Appointments Committee to consider writing a letter to the Minister in terms of the contract which was signed, that Ms Malahlela was not fit and proper to be appointed as a magistrate. The Executive Committee soon thereafter resolved that the matter should be referred back to the Ethics Committee.

There was also a legal opinion which provided that if a magistrate did not comply with the terms of his/her contractual obligations for his/her appointment and there were allegations of failure to execute his/her magisterial obligations, this resulted in a breach of contract which warranted a fully flagged misconduct inquiry by the Magistrates Commission. Thus, the Commission had removed Ms Malahlela from office to conduct a misconduct inquiry in terms of Regulation 29 of the Magistrates Act, in order to be able to terminate her services. In the meantime, she was on provisional suspension and was still remunerated, because her remuneration had been determined as another aspect at a different level. The Commission had powers in matters of a suspended magistrate to determine to remuneration. but it was not the case in the present scenario.

He said that the Commission was ready to adjudicate Ms Malahlela’s matter and a hearing date had already been set by Ms. Malahlela’s attorney. However, the matter depended on the issues placed in the dispute, and how soon the misconduct inquiry could be commenced. The Commission had appointed a person in charge of the evidence, as well as a presiding officer, and would like to expedite the misconduct inquiry and have it concluded as soon as possible. The time expense could not be clearly spelt out at the moment, because the matter was dependent on several factors. However, the Commission was of the view that it should proceed with the inquiry as soon as possible and had already sent a notice of hearing to Ms Malahlela.

Discussion
Mr Mohapi, as a follow-up question, requested clarity on who was responsible for the lapse of time and the consequence therefrom, as provided for under item 2.3 of the presentation.

Magistrates Commission’s response
Mr Meijer said that the preliminary report recommended that Ms Malahlela be charged with misconduct. However, the Ethics Committee had resolved that other amicable means be adopted to try and resolve the problems that existed. This process had set back the decision-making process by two years, hence resulting in the delays in charging Ms Malahlela.

Discussion
Mr Mohapi said that he was so concerned on the aspect of the time delays because disputes over Ms Malahlela’s appointment in November 2004 were only heard by the Committee being in 2014. Subsequent to her suspension, Ms Malahlela had had problems of absenteeism, poor performance, refusal to execute lawful orders and other related issues which warranted the Commission to institute charges of misconduct, but unfortunately they had not been instituted. He said that item 2.9 of the presentation was similar to item 2.3, because they both speak to instituting charges of misconduct against Ms Malahlela, which had not yet taken place. He wondered why the Ethics Committee, under item 2.8 of the presentation, had resolved not to pursue any matter concerning Ms Malahlela furthe,r but did not go ahead to recommend the non-appointment of Ms Malahlela on a permanent basis. He said that the Executive Committee had recommended that Ms Malahlela be charged, but was not sure of the year when the said recommendation was made. There was no justification in conducting an investigation into the misconduct of Ms Malahlela, because this was resulting into delays -- and justice delayed, was justice denied. Thus, what was the justification for the delays regarding Ms Malahlela’s case?

He said that the Committee was not provided with the stipulations in Ms Malahlela’s contract on the appointment to the Magistrates office, which would help them shed more light on to some of the controversial issues of the Commission’s representation. They did not know the rationale of the contents of her service contract. Thus, based on the presented facts by the Magistrates Commission, he was of the view that there was no solid reason why the matter of Ms Malahlela had dragged on from 2004 to 2014, but if there were specific reasons in that regard, he requested that they be forwarded to the Committee. He asked for clarity on the specific problems associated with the Magistrate, and whether her problems were related to incapacity or ill-health, a matter which had not clearly been stated during the Commission’s presentation.

Ms Wana asked about Ms Malahlela’s previous postion and how long she had held it before she was appointed and put on probation as a provincial magistrate.

Mr Julius said that on grounds on fairness, the report had indicated what had transpired in 2004 to 2014. He requested clarity on the medical personnel who had issued the medical reports, because they would give a clear indication of Ms Malahlela’s problems associated with health. Incapacitation due to ill-health warranted the Committee to consider the matter at hand differently. He requested details on the individuals or organs responsible for the reports made against Ms Malahlela, because the details indicated the grounds on which the reports would be based on. The allegations made were difficult to understand, because there was no proof of what they were based on. For example, the records of her absenteeism needed to be included in the presentation, because they would clearly spell out the issues which the Committee had to deal with. He requested a response from Ms Malahlela on why she should not be provisionally suspended, since the case against her had not been proven by the Commission. He could not make a judgment on her conduct and be sure that he was fair, based on the presentation alone, which he found to be lacking.   

Mr M Chetty (DA, KwaZulu-Natal) said that the Committee’s concern was based on the critical issues arising from the lapse of time. They needed to find out why there had been a lapse of time.  From the Commission’s presentation, there were clear manifestations of lapse of time. Under item 2.4 of the presentation, the Ethics Committee had decided not to charge Ms Malahlela with misconduct on grounds of lapse of time. However, in 2013, the previous charges of misconduct from 2009 were opened. These incidents were a manifestation of gross negligence by the Magistrates Commission, so the Committee needed to speak of gross negligence and incompetence regarding the matter at hand. The Committee needed to look at the financial implications of the salary paid out during the period in which this matter had dragged on. The failure to conclude the matter in 2009 due to a lapse of time exhibited high levels of gross negligence and incompetence and it did not make sense to him that the same charges were being reinstituted against Ms Malahlela.

Magistrates Commission’s response
Mr Meijer said that it was very difficult for the Magistrates Commission to deal with the matter at hand, because it had lots of issues to consider. The Commission had tried to accommodate Ms Malahlela. Initially there was a report stating that she was not fit to be permanently appointed as magistrate. On these grounds, her probation period was extended during which the misconduct allegations arose and a preliminary investigation had been conducted. The Commission had to make a recommendation to the Appointments Committee to inform the Minister that she was not a fit and proper person to be appointed as Magistrate, and a letter had to be written to Ms Malahlela informing her of the allegations against her. However, the Appointments Committee directed the Commission to refer the matter to the Ethics Committee, which had resolved to conduct a preliminary investigation.

The first preliminary investigation report considered and recommended that she should be charged with misconduct. The Ethics Committee had resolved not to charge her, but a round table discussion should be conducted to try and resolve the problems at hand amicably. However, the round table discussion did not materialize because Ms Malahlela was not willing to cooperate, and the strained relationship between Ms Malahlela and her judicial head did not make the round table discussion any easier. They had both appointed legal representatives for the roundtable discussion, which had stalled the progress of the matter. The Ethics Committee then resolved to make a recommendation to the Appointments Committee on the fact of the breach of contract by the conduct of Ms Malahlela, to terminate her services. The Appointments Committee referred the matter to the Executive Committee, which resolved that a fully flagged misconduct inquiry had to be conducted if the Commission wanted to discharge Ms Malahlela from office.

At this stage, the matter was considered by the Ethics Committee, which conducted the preliminary investigation. During this time, Ms Malahlela was absent from office due to ill-health. In 2010 to 2011 the Committee considered conducting a Regulation 29 investigation into her ill-health. She visited various doctors and the reports submitted by these doctors indicated that she was a fit and proper person to hold the office of magistrate. Her special psychiatrist, in his report on 11 October 2010, said that there were no grounds to provide for ill-health retirement due to psychiatric reasons. In a report dated 30 November 2010, Dr Tshabalala, another psychiatrist, indicated that Ms Malahlela suffered from bipolar mood disorder and this had a profound effect on her performance as a magistrate. However, she lacked insight into her diagnosis, did not attend her treatment sessions and did not take medication regularly. This did not imply that she was non-functional. As long as she denied the presence of her illness, she would blame the problems of her work on others and based on these findings, the Commission resolved not to continue an inquiry into her ill-health. The Commission could not proceed on these grounds, because the doctors had said that Ms Malahlela lacked insight of her actions due to the bipolar mood disorder.

However, new complaints about Ms Malahlela kept being forwarded, and the Ethics Committee decided to make a finding on these new complaints, which had resulted in the latest preliminary investigation culminating in the 29 counts of misconduct against her. The entire process was very lengthy, and the Commission had tried to accommodate Ms Malahlela, but there was a lack of co-operation on her side. There several petty issues involved in the matter, hence the Commission resolving that it was no longer in the interests of the justice and the Commission to prolong the matter. The Ethics Committee had put the matter before the full board of the Magistrates Commission and it was resolved that she be charged with the 29 counts of misconduct and given final resolution in this regard.  Given the seriousness of the charges brought against her, a resolution was made that she be suspended from office.

Discussion
Mr L Nzimande (ANC, KwaZulu Natal) said that the Committee needed to contextualize the duties of the Magistrates Commission, particularly the composition of the Commission -- including the committees established therein, like the Ethics Committee, amongst others. He wanted to know the impact which the actions and the findings of the Commission had on the people of South Africa, and whose mandate the Members of the Committee represented in parliament. He said t the fact of the matter was that the entity was mandated with the service delivery of justice to the people. There were issues of performance which could not be challenged as a matter of fact. Given the Commission’s presentation and the Member’s questions, if the Committee was requested to confirm or pronounce on a request for a removal from office of Ms Malahlela, the Committee would have come to the conclusion differently.  However, what was required of the Committee was to make a pronouncement on the provisional suspension, which was a normal course of practice when there were investigations conducted on an individual and the suspension should be upheld in order to aid them to come to a proper conclusion . However, the Commission needed to pay attention to the issues regarding fairness which had been raised by the Members of the Committee, to enable them to execute their mandate.

Ms Manopole said that she aligned with the provisions of the Magistrates Court Act in section 13(e) on the provisional suspension of a magistrate, which required the Magistrates Commission to provide a progress report every three months on the provisional suspension of a magistrate. Previously the mandate to take the report to parliament was with the Ethics Committee, but the Act directs this duty to the Magistrates Commission, which was mandated to inform parliament on the provisional suspension as well as to give a progress report every three months on the suspension. The Act equally empowered parliament to either or not confirm the provisional suspension of any magistrate on grounds of misconduct. She said that although the process of charging Ms Malahlela had stalled, there were human reasons why this process had delayed and the Commission needed to be given an opportunity to go back and address the matters in a timelier manner. She said that the legality of the misconduct inquiry should have proceeded, despite the details of the medical reports which had delayed the progress of the initial report. With the current provision of the Magistrates Act, the Commission had 60 days to conclude the investigation report and report to parliament within three months.

Ms Mokwele asked about the process taken when disciplining a magistrate. Through the presented report, it indicated that Ms Malahlela had been having serious health issues during her probationary period as a magistrate. However, the Commission needed to focus on the provisions of the Magistrates Act, to make an inquiry into the legal consequences of her conduct which could be investigated and then directed to parliament for a final decision.

Mr Julius said that they supported the resolution by the Commission to suspend Ms Malahlela from the magistrate’s office.

Ms Wana said that a caucus of the collective leadership of the Select Committee was to deliberate on the matter at hand, to which the Committee members agreed.

Magistrates Commission’s response
Mr Meijer said that when Ms Malahlela applied for the magistrate’s position at Delmas, she indicated in her application documents that she was in good health, with no problems of any bipolar mood disorder, and was thus appointed for transformation purposes. However, her ill-health claims started in 2009-2010, when she was absent from office for long periods and the Commission subjected her to an ill-health investigation. The doctor’s conclusion was that if she did not recognize that she had a bipolar mood disorder and take her medication and go for follow-up treatment, then the Commission could not find that she was unfit to hold office on the same grounds. The Commission could not say that she was continuously absent from work due to ill-health, but she had had several incidents of absenteeism from work due to ill-health, for example, a influenza incident in 2012. Thus, the Commission had decided not to use her ill-health investigation reports to determine her fitness to hold public office and the absenteeism from office had not been raised as a charge in her misconduct inquiry. A notice of hearing indicating the charges had already been served on Ms Malahlela, even before her suspension, which warranted the misconduct inquiry commencing within 60 days, as indicated in the Magistrates Act. Further, the Commission was in the process of determining a date for the hearing and in three months must report to Parliament on the progress of the misconduct inquiry.

The Chairperson said that the Committee concurred with the Magistrates Commission on observance of the provisions of the Magistrates Act regarding the conduct of misconduct inquiries.

He then called on the Magistrates Commission to make another presentation. However, Mr Mohapi requested the Commission to start their presentation on the progress report, and not go through the lengthy reading of the background information in an effort to save time.  He said that the Select Committee was very progressive and received documents up front, and so had had the opportunity to read through them.

Magistrates Commission: Progress report on the conditional upliftment of the provisional suspension of Mr P Hole
Mr Andre Louw, Magistrate, Magistrates Commission, made the presentation of the progress report on the conditional upliftment of the provisional suspension of Mr P Hole.

He said that the progress report on Mr Hole involved two matters -- progress of his part-heard matters and progress of his misconduct inquiry. Mr Hole had 26 part-heard matters. His suspension was uplifted to deal with the part-heard matters, and he had finalised 17 of the 26. Mr Hole’s misconduct inquiry had been ongoing for a long time -- since 2013 -- and there had been various applications for recusal from the proceedings by Mr Hole. According to the report on 29 July 2014, it was indicated that Mr Hole’s matter had been postponed to be adjudicated from 8 to 12 September, and 13 to 17 October 2014. The reason for the two dates was because the witnesses in Mr Hole’s proceedings were all magistrates whose presence needed to be determined by their availability from their official duties. On 8 December, the inquiry into Mr Hole’s conduct could not proceed for a week because he had submitted a doctor’s certificate for his attorney’s ill-health. There had been several objections to the further postponement of his cases but nonetheless the postponement was granted on grounds of a fair hearing for Mr Hole. He said that the witnesses for the Commission were ready to proceed with the inquiry whose hearing date had been set for next month.

Discussion
Mr Mohapi asked why the request by Mr Hole for the recusal of the presiding officer at his inquiry had been denied.

Magistrates Commission’s response
Mr Louw said that the recusal application was for institutional bias, as Mr Hole felt that the Commission was not the right forum to charge him and adduced case law evidence in this regard. He also felt that the Commission was biased against him and was not satisfied with the decisions and the attitudes of the presiding officer, who denied him many of his applications, besides the recusal application. He thus felt that the presiding officer was biased against him.

Discussion
Mr Mohapi asked whether the person who determined the recusal application was the same as the one who was initially presiding over his case. He said it was improper for his recusal application to be determined by the same person who was initially presiding over his case.

Magistrates Commission’s response
Mr Louw confirmed that the recusal application was before the same presiding officer who had adjudicated on Mr Hole’s proceedings from the beginning.

Mr Meijer said that there was an option for Mr Hole to take the matter for review if he was not satisfied with the ruling of the presiding officer, even after his hearing.

Mr Louw said that the discrepancy arose when the presiding officer failed to comply with Mr Hole’s request to first have a meeting with his legal representatives, who were not present at the particular time, to advise him on the way forward to approach the High Court.

Discussion
The Chairperson requested the Committee to consider Mr Hole’s progress report, which the Members noted. He asked the Commission to make a presentation on the additional progress report, which was initially not part of the day’s agenda.

Mr Julius requested clarification on why the additional presentation was being made, because it was not indicated initially on the meeting’s agenda.

The Chairperson responded that he had mentioned at the beginning that an item would be added on the meeting’s agenda to allow the Commission to brief the Committee on the progress report regarding other matters being dealt with by the Commission. However, if there was a problem, the Chairperson suggested that the briefing on the progress report could be done at another meeting in order to follow the originally set agenda for the day’s meeting.

Magistrates Commission’s response
Mr Meijer said that the additional progress reports were on the misconduct inquiries that had been commenced by the Magistrates Commission and a progress report was required to be brought to the attention of parliament within three months after the misconduct inquiries had been commenced, as stipulated in section 13(3)(f) of the  Magistrates Act.

Discussion
Ms Manopole requested that the additional progress report be dealt with at another meeting because the requisite documentation had not been provided to the Members earlier for their perusal. She said that the meeting had adopted the agenda as is and should not add any additional items which were meant to be dealt with at a later stage.

Ms Mokwele said that it was an injustice for the Commission to go through a report whose documents had not been submitted to the Members of the Committee. She appealed to the Committee’s secretariat to highlight matters which it needed to bring to the attention of the Committee before they attended the Committee meetings -- surprises in presentations at Committee meetings should be non-existent.

Mr Mohapi requested the Committee to be cautious with their decisions on the presentations, due to the compliance issues associated with them. It was not right to dismiss a presentation outright because it was not itemised on the agenda. He asked Members to acknowledge that there had been a miscommunication between the Committee’s secretariat and the Magistrates Commission over adding the presentation on the additional progress reports on the meeting’s agenda. The presentations needed to be considered currently because the magistrates were appearing before the Magistrates Commission and Parliament needed a progress report on the said proceedings. He requested the members to allow the presentations and make an addendum to the meeting’s agenda.

The Chairperson then requested the Magistrates Commission to summarily brief the Committee on the events of the additional progress reports.

Ms Mokwele said that she agreed with Mr Mohapi, but disagreed with him on the issue on compliance. She knew that the Commission had to comply with the provisions of the Magistrates Act, but it was not supposed make requests for parliamentary briefings at the last minute for the Committee to adopt or dismiss their recommendations. It was acceptable for them to make a presentation on the additional progress report if it was constrained by time, but they were not supposed to run to the Committee at the last minute when they were running out of time.

Magistrates Commission’s response
Mr Meijer said that the Commission was obliged to file a progress report on the misconduct inquiries that it was pursuing, and the additional progress reports were all from 28 August 2014. The previous progress reports had already been dealt with, so the additional briefing was not faced with time constraints. He said that before the elections, there had been a problem of having the progress reports tabled in parliament, but this was resolved after the elections.

Additional progress reports dated 28 August 2014: Provisional suspension from office of Magistrate M J Kgomo, Randburg
Mr Louw said that Mr Kgomo faced misconduct allegations with the Magistrates Commission, as well as corruption charges. He also faced corruption charges amounting to R20 million in another country, where he had to be transferred to face the allegations against him. There had been an application in the regional court, where it was alleged that Mr Kgomo had influenced the outcome of an extradition application by receiving a R150 000 bribe in a briefcase at his judicial chambers. He had been caught red-handed by the police during the incident, and the bribe and the money had been recovered. In addition to the corruption charges, Mr Kgomo was being charged with misconduct by the Magistrates Commission. However, there was a request from the National Prosecuting Authority (NPA) to the Commission not to proceed with their misconduct inquiries because they could impact on their criminal proceedings against Mr Kgomo. Both proceedings had similar witnesses whose status could be prejudiced if they first appeared before the Magistrates Commission. The matter was postponed to 3 October 2014, after which a date for the trial would be set out.

Mr Mohapi responded that the briefing had been noted by the Select Committee.

Provisional suspension from office of Chief Magistrate J Van Schalkwyk, Kempton Park
Mr Meijer said that Ms Van Schalkwyk was charged with 24 counts of misconduct, which were served on her on 1 August 2013. Her attorney had acknowledged receipt of the charges. The same charges were published in the national newspapers.

On 7 October 2013, Mr Coetzee (representing Ms Van Schalkwyk) filed a written objection with the Magistrates Commission against the appointment of the Chief Magistrate of Pretoria to lead the evidence at the misconduct hearing against Ms Van Schalkwyk. In its response, the Commission advised Mr Coetzee that Mr Nair had been duly appointed in terms of the applicable legislation and that his duties and functions were different from those of a presiding officer in the matter. He was further advised to raise any objections in this regard to the correct forum, which would before the presiding officer at the disciplinary hearing. Ms Van Schalkwyk then asked for voluminous particulars of the charges that were being brought against her. These were submitted to her to enable the defence to prepare for their hearing. The requirement of a pre-trial conference for Ms Van Schalkwyk’s matter was set aside, because a hearing date of 6-7 October had been set for the trial to commence.

Discussion
Mr Mohapi said that as a matter of consistency, the Commission needed to clearly spell out the charges brought against Ms Van Schalkwyk, instead of providing information that she was charged with 24 counts of misconduct. He appealed to the Ethics Committee that in future, the aspect of consistency in their reports should be upheld, because it offered clarity on the reports issued to the Committee.

Magistrates Commission’s response
Mr Meijer apologized for the inconsistency, and said that the details of the charges against Ms Van Schalkwyk would be indicated in the next report to the Committee.


Provisional suspension from office of Magistrate I Morake, Lichtenburg
Mr Meijer said that Mr Morake was charged with various counts of misconduct. Allegations of theft were brought against him, as well as other counts of misconduct as stipulated in the documented presentation.

The Magistrates Commission had proceeded to consider all these charges on 23 April 2012, but had been requested to await the outcome the criminal trial before they could proceed with the misconduct inquiry. New charges were brought against Mr Morake, which had resulted in a change to the charge sheet which had been drawn up against him by the Magistrates Commission. It was resolved that Mr Morake would be charged with contravening the code of conduct, in the sense that he had not been found guilty of an offence, but was charged with misconduct on his actions. He appointed legal counsel, who had had an opportunity to meet with the Magistrates Commission to resolve the issues regarding the new charges that were being instituted against him. The matter had already been heard, but had been postponed for a further hearing and argument on15-16 October. It was hoped that the matter would be concluded in 2014. Due to his provisional suspension, Mr Morake was not receiving any remuneration. 

Mr Mhlanga said that the briefing was noted by the Select Committee.

Provisional suspension from office of Regional Magistrate T Rambau, Limpopo Province
Mr Meijer said that Mr Rambau was criminally charged with the offence of corruption. He was arrested, together with a prosecutor and an attorney, and appeared on 8 February 2010 before the regional court in Limpopo.

It was alleged that he and the prosecuting attorney had arranged the outcome of a trial by pre-determining the sentence for financial reward. The state’s case had already been closed in the criminal matter. He said that Mr Rambau had raised very many points on review which were not initially raised in the criminal trial. However, his re-application was dismissed and he had decided to take the matter on appeal. His application for appeal was also turned down and he was left with the option of making an application for a hearing by the full bench of the High Court. In the meantime, the Magistrates Commission had proceeded to charge him with misconduct. However, he had requested the Commission to wait for the outcome of the criminal trial before a disciplinary inquiry could be conducted against him. The presiding officer in his criminal investigation had granted this postponement, but the Commission was not satisfied with the decision and had thus decided to pursue the matter.

Discussion
Ms Wana asked why Mr Rambau had not been dismissed as a magistrate, since he had a criminal record. She was disturbed by the time frame in which the matters of the Commission were being resolved, and asked why it was taking them so long to resolve some of the stated issues. What was the problem of dismissing an individual who had a criminal record?

Mr Mohapi asked for the role of the Ethics Committee in trying to minimize the levels of bribery within the judiciary, which was really worrying. He wondered whether there were any mechanisms in place to solve the problem and if not, he urged the Ethics Committee to develop strategies to curb the problem of corruption within the judiciary.

Mr Mhlanga said he hoped that the matter of Mr Rambau would be pursued by the Ethics Committee after his criminal proceedings had been concluded. He noted that the law mandated that a person was innocent until proven guilty by the courts, so the report should be interrogated when the Ethics Committee had another opportunity to re-examine the matter.

Ms Mokwele said that the additional progress report had been presented to the Committee for the purpose of being noted, but it would be interrogated at another meeting so there was no need to address other matters in the presentation during the discussion other than to note the presentation.
 
Magistrates Commission’s response
Mr Meijer said that according to section 13 of the Magistrates Act, the role of parliament was to note and make resolutions on the suspension of the magistrates when reports were presented to them. He clarified that Mr Rambau had not be found guilty of any criminal allegations. However, the state’s case against him had been closed. He said that the Magistrates Commission had a judicial quality assurance assessment component as well as judicial quality assurance magistrates in each and every province. These were senior magistrates who visited each magistrate’s office within a particular period of time to access the judicial work of each judicial officer at a specific office. During this period, problems were picked up from the judicial offices, but it was difficult to foresee that a magistrate would take a bribe.

The Chairperson thanked the Magistrate Commission for its commitment to the Select Committee. He appreciated Mr Mohapi’s view that corruption was a common trait among magistrates. However, he did not understand the need for magistrates to receive bribes in briefcases and paper bags. This required the Commission to be rigid and prosecute such misconduct immediately.

Briefing by Content Advisor on magistrates’ salary grievances
Ms Anthea van der Burg, Content Advisor, briefed the Committee on the magistrates’ salary grievances. She said that the grievances over magistrates’ salaries were an issue that had been dealt with substantially during the fourth parliament, and there was a need to inform the new Parliament about these issues because different role players had approached the Committee in respect of magistrate’s salaries. There had been a court decision regarding the salary grievances. Her presentation was meant to highlight the sections in the Magistrates Act and other legislation providing r the guidelines which the Committee should follow when addressing the grievances.

She said that there were four role players in the matter.

The first was the Independent Commission for the Remuneration of Public Office Bearers which, in terms of section 12 of the Magistrates Act, required the Commission to make recommendations relating to the salary benefits and allowances of magistrates on an annual basis. The Commission usually made its recommendations to the President.

There was a Lower Court Remuneration Committee which had been formed subsequent to a request in May 2011 by the then Chief Justice to have a single committee to advise him on matters related to salaries, benefits and allowances of magistrates.

The Judicial Officers Association was another role player. It was a non-profit voluntary association which represented approximately 1 300 judicial officers of all ranks -- magistrates, senior magistrates, regional court magistrates, chief magistrates and regional court presidents.

The Association of Regional Magistrates Southern Africa was the other body, which represented the interests of permanently appointed regional magistrates.

The grievances over magistrates’ salaries related to the differences in salary levels between magistrates and prosecutors. Magistrates felt like prosecutors had better salaries and there was no consideration of the different roles which both parties played. There was no consultation and transparency into the salary grievances. However, the most important aspect of the magistrates' grievances was the court judgments.

In 2010, the President had recommended a five per cent increase in magistrates’ salaries. However, the Magistrates Commission had recommended a seven per cent remuneration increase. In consultation with the Minister of Finance, the President had been advised that only a five percent remuneration increase could be accommodated by the budget. This increase had been approved by the National Assembly and the NCOP. The Association of Regional Magistrates of Southern Africa had then taken the matter to the high court on the grounds that the President had erred in his five percent salary increase, and his decision required administrative review on the grounds that the role players had not been duly consulted during the salary increment. The High Court had set aside the five per cent salary increment and called upon the President to make a new decision on the matter. A legal opinion on the matter of dispute was presented to the previous Select Committee, which then decided that the dispute on the magistrates’ salaries should be referred back to the President.

In 2012, the matter was taken to appeal on the grounds that the decision which had been given was executive, and not administrative in nature. The judgment stipulated that the decision of the court had taken the recommendation of the Judicial Officers Association into account when it was making its decisions, that the President had duly consulted with the Minister of Finance on the salary increment, and that they had duly exercised their mandate in terms of the provisions of the Magistrates Act. The Association for Regional Magistrates of Southern Africa argued that the Commission had applied a blanket approach in its recommendations, failing to treat its Members as a category of public office bearers, and had therefore been left out of the decision-making process regarding the different roles they played in the judicial office. The court found that the Commission did in fact take into account the different roles of the role players and the constitutional court had found that the decision of the President regarding the salary grievances was rational. Thus the high court decision was set aside, and it was found that the President was correct in making the five per cent salary increase for the judicial officers. The court had also acknowledged the increased load of work carried out by the regional magistrates, and had ordered that the conditions of service as well as remuneration were adequate and consistent with the scheme envisaged in the Constitution and the relevant legislation.

In terms of moving forward, Ms Van der Burg said she was going to brief the Committee on the provisions of the legislation regarding the role of the Committee on grievances of magistrates’ salaries.

A referral to the Committee in terms of section 8(5) of the “ICPRBOB” Act was for information and engagement purposes in preparation for its own ideas and consideration once the matter was tabled for purposes of approving or disapproving the President’s determination in terms of Section 12(3) of the Magistrates Act. The President’s determination came at the end of the process of determination of the Commission, which takes its decision to the Chief Justice, who then takes the decision to the Minister of Finance, who then takes the decision to the President where, after the decision, it would be directed to the Select Committee.

Based on the regulations in the legislation and case law, Parliament is not required to engage directly in the consultation processes required for purposes of determination of salary increases and the remuneration of public office bearers. Parliament is constitutionally obliged to monitor and maintain oversight of the exercise of the National Executive Authority. This means that if the Committee decides that it wants to engage with the various role players in the magistrates’ salary grievance matters, it could do so but was not required to do so. The onus was on the Select Committee to choose the way in which to deal with the magistrates’ salary grievances. 

Discussion
Ms Wana asked whether the requisite personnel mandated with the remuneration of public officers were consulted during the grievance enquiries, because the issue of public office bearers’ remuneration was the prerogative of the President. as well as the Chief Justice. She wondered whether the Committee could have access to Justice Moseneke in order to discuss the grievances relating to magistrates’ salaries.

Mr Nzimande commended the presentation, especially on the options which could be taken by the Select Committee to deliberate on the grievances of the magistrates’ salaries. He said that the Justice Department in the previous Parliament had made a presentation to the Select Committee on how they were progressively closing the gap between the salaries of magistrates and other judicial officers. Magistrates in the previous regime were treated as commissioners, or as mere public servants. The gap between them and other public officers had never been properly closed. It was alleged that some prosecutors were earning far more than the magistrates, yet the magistrates had a higher ranking than the prosecutors. He proposed that the Justice Department be called for a meeting with the Select Committee in order to interrogate them on how far they had gone in closing the salary gap between the magistrates and the other judicial officers.

The Chairperson noted the Content Advisors report on behalf of the Committee.

Tabling of third term programme
Mr Dixon made a presentation on the Select Committee’s draft third term programme, as indicated on the last page of the issued documents of the Committee Meeting.  He said that the third term programme was going to run from 14 October to 28 November 2014.

Ms Wana proposed adoption of the draft third term Committee programme, and was seconded by Ms Mokwele.

The Chairperson thanked the Committee members for their commitment towards their duties and acknowledged that they were a wonderful team. He said that if they continued with their good performance, they were taking South Africa ahead.

The meeting was adjourned