The Committee formally adopted three Committee Reports relating to the suspension of Mr TM Masinga, Additional Magistrate at Emlazi; the provisional suspension from office of Mrs RM Mahlalela, Additional Magistrate at Delmas; and the approval of the Magistrates Commission report on the upliftment of the provisional suspension of Mr PS Hole, Magistrate at Kimberley. A Member raised concerns that the Mahlalela matter had been ongoing for ten years, and still not reached finality. Members briefly discussed the fact that substantial delays invariably occurred in all such cases, because the magistrates would challenge the validity of the proceedings and seek interdicts or lodge appeals, but agreed that in the Mahlalela matter the delays occurred largely within the Magistrates Commission. It was hoped that when the newly-established Office of the Chief Justice took over these matters, there would be improvements in the administrative process, but Members also suggested that it would be useful for those Members of Parliament who served on the Magistrates Commission to try to contribute to finding solutions to the challenges, and perhaps a meeting between Parliament and the Magistrates Commission on this point would be useful. Members adopted the three reports, with technical amendments.
The Committee also adopted, with no changes, the Committee's report on the Attorneys Amendment Bill, noting that changes had been effected to the names of the Law Societies, which had stil reflected apartheid-era provincial names, following consultation with them. Members would be free to raise any additional issues during the debate.
Suspension and disciplinary actions against magistrates: Adoption of Committee reports
The Chairperson tabled and asked Members to adopt the Committee Report on matters previously discussed, relating to three magistrates.
The first matter was the approval of the report by the Magistrates Commission on the upliftment of the provisional suspension of Mr PS Hole, Magistrate at Kimberley.
Members proposed that the report on this matter be adopted.
The Chairperson moved on to the Report on the provisional suspension from office of Mrs RM Mahlalela, Additional Magistrate at Delmas.
Mr Swart suggested that, in paragraph 15, the second sentence should be deleted, because there had not yet been a finding on her conduct. He made the point that whilst the Committee would be within its rights to comment on her conduct, it would be premature to reach a decision on the nature of the conduct and could potentially open up a ground for review.
The Chairperson agreed, and suggested that this paragraph be amended.
Mr J Selfe (DA) said that whilst he proposed adoption of the Report, he wanted to express concern at how long this matter had been ongoing. It had been through a number of different committees, and the inefficiency inherent in the process would need to be reflected upon by the Committee. Whilst he fully appreciated the delicate balance between maintaining the independence of the judiciary and allowing external scrutiny, this matter had been outstanding for ten years, and was still yet to be resolved.
The Chairperson said that independence of the judiciary did not imply that Parliament could turn a blind eye when there was any suspicion of a miscarriage of justice. When matters like this could not be resolved the reputation of the judiciary itself was harmed. He hoped that the new administration under the Office of the Chief Justice would be able to improve upon this kind of situation.
Members adopted the report.
The Chairperson then asked that Members consider the Report on the suspension of Mr TM Masinga, Additional Magistrate at Emlazi.
Mr Selfe said that there were two typographical errors. In line 2 of the first bullet point, the word “officer” needed to be inserted after “presiding”. In the last line of the second last bullet point, the plural "instances" should be used.
The Chairperson said that those Members of Parliament who sat on the Magistrates Commission should try to contribute to finding solutions to the kinds of delays seen in the Mahlalela matter.
Mr Swart said that the problem was, when this Committee was called upon to decide upon matters relating to discipline, any Members who sat on the Magistrates Commission would not be able to participate actively, lest they find themselves called upon to be part of the Magistrates Commission disciplinary process and the ratification by Parliament. He suggested that it was not a problem for these Members to participate in discussions about procedure, and perhaps the Committee needed to have a joint meeting with the Magistrates Commission, as had been done in the Fourth Parliament. There was a tendency for impugned magistrates to launch court proceedings to try to halt or question the disciplinary hearing and this caused delays, because once an interim interdict was obtained the hearing could not continue. He therefore supported the Chairperson’s suggestion.
Mr Selfe said that in the Mahlalela matter in particular, the delays seemed to be within the Magistrates Commission, because the matter went from one process under the Commission to another, being referred to the Executive Committee and back to the Ethics Committee. The matter had been going on for ten years already and was apparently no closer to being resolved.
Ms C Pilane-Majake (ANC) said that the problem may lie in the scope for delaying tactics presented by “the type of democracy" that South Africa had. The magistrates involved in disciplinary processes also had the advantage of knowing how to exploit the system.
The Members adopted the Report on the suspension of Mr Masinga.
Attorneys Amendment Bill: Draft Committee Report
The Chairperson read out the short and formal report, which was to the effect that the Committee approved the Attorneys Amendment Bill (the Bill) with amendments. He noted that there was a further report on the niame changes for the present law societies, which had been debated during the consideration of the Bill. It had been proposed, and the route followed, to make name changes following consultation. In addition to the Report of the Committee, Members would be at liberty to raise other points during the debate, which would not, however, be considered part of the Committee Report.
The Report was adopted, without amendments.
The meeting was adjourned.
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