Suspension of magistrates: Magistrates Commission progress report; KwaZulu-Natal Oversight Committee Report; International Study Tour preparation

Meeting report

Magistrates Commission Progress Reports on suspended magistrates
Mr Hans Meijer, Judicial Quality Assurance Officer, Magistrate’s Commission, tabled the status report of the Magistrates Commission (the Commission) on the magistrates against whom disciplinary action was still pending. He confirmed that all those mentioned in the report had been provisionally suspended already, pending finalisation of each investigation whether they were still fit to hold office. The suspensions had been approved by the Minister and both Houses of Parliament. He noted that this quarterly report was being made in compliance with section 13(3)(f) of the Magistrate's Court Act.

He took the Committee through each of the reports.

Provisional suspension from office Mrs R M Malahlela Aspirant Additional Magistrate, Delmas
Mrs Malahlela filed a Notice of Motion on  18 June 2014 at the North Gauteng High Court, calling for an order that the decision by the Commission to charge her with misconduct was unlawful. The Commission opposed the Notice of Motion, but decided to proceed with the suspension and misconduct inquiry. Mrs Malahlela’s attorney had received further particulars from the Commission and the trial hearing would commence on 11 May 2015.

Ms G Manolope (ANC, Northern Cape) interjected at this point to say that she could not find the document, and asked the Commission to refer to the correct document, and wait until Members could find it.

Mr L Nzimande (ANC, Kwa-Zulu Natal), also complained that he could not find the documents and asked that the information be repeated.

Mr J Julius (DA, Gauteng) asked that the Commission follow the document, not the way it was laid out in the agenda, for simplicity, and the Chairperson pointed out where on the agenda the items could be found.

The information was clarified for  the Members later.

Mr PS Hole, Regional Magistrate at Kimberley
Mr Meijer noted that Mr Hole had been charged with misconduct and had been provisionally suspended, but had left a number of matters over which he had been presiding uncompleted. Non-government organisations assisting the complainants had pointed out that they stood to suffer severe prejudice should all the matters have to recommence and, after discussing the matter with Parliament and the Minister, it had been decided last year that the provisional suspension would be lifted on condition that Mr Hole be assigned only to the part-heard matters, complete them, and that he must not conduct himself during this period in a way that would compromise the integrity of the judiciary. Out of all the 26 part-heard matters, Mr Hole had now completed 21 and was left with 5. In the meantime the misconduct enquiry was also proceeding, but had been postponed, and would be heard on 23 to 27 March. The delay was due to a misunderstanding between the presiding officer and Mr Hole's counsel.

Discussion
Mr G Michalakis (DA, Free State), asked what were the grounds on which the court action was brought, in Mrs Malalhela's matter.

Mr Meijer noted that she had alleged bias.

Mr J Julius (DA) asked whether the magistrate was absent had been absent on 23 to 27 February, for the hearing of the Hole matter, or whether the hearing had been postponed or cancelled.

Mr Meijer thought, although he stood to be corrected, that this was a case of illness, but he would update the Committee on the precise details in his next report.

The Magistrate replied that the magistrate was ill though he stands to be corrected. He will update the Committee in the next report.

Mr Nzimande asked what was the progress on the five part-heard hearings that still had to be completed by Mr Hole, and what the situation would be should the disciplinary hearing be finalised before those cases were heard.

Mr Meijer advised Members that this update report was compiled in December 2014 and he would again be able to update Members on those at the time of the next report. It would depend on the outcome. Should the disciplinary hearing concluded that Mr Hole was guilty of misconduct and his suspension be confirmed, then he would not have jurisdiction any longer to complete those matters. However, should there be any delay, or should he not be found guilty, then he would still be obliged, in terms of the agreement made earlier, to complete them.

The Committee noted both reports.

Provisional Suspension from office, Chief Magistrate J F van Schalkwyk, Kempton Park
Mr Meijer stated that Ms Van Schalkwyk was charged with several counts of misconduct. Her defence raised numerous points in limine, and applications  were argued on 6 October  2014. The application was successful in respect of one count, but the hearing was postponed twice due to a lack of documents. The hearing was set down for 23 February 2015 but the Tribunal was told on that day that her mother had passed on, and she asked for a further postponement. It was now set down on 20 and 21 April 2015 for hearing.

The progress report was noted by the Committee.

Provisional suspension from office, Additional Magistrate J Kgomo, Randburg
Mr Meijer stated that Mr Kgomo was still on bail pending some serious charges of corruption being finalised. The National Prosecuting Authority (NPA) asked the Commission to hold back on its disciplinary inquiry because it would prejudice the State’s case should evidence be lead here before the criminal trial was heard. The Commission agreed to this request, but only on condition that the NPA provided regular progress reports about the criminal prosecution. It had also requested the same prosecutor in the criminal case to take the lead in the misconduct hearing. He stressed that the disciplinary enquiry was merely postponed.

Discussion
Mr Julius asked what the effect would be if the NPA requested the Commission to scrap the hearing of Mr Kgomo altogether. He also wanted clarity on section 13 (3)(a) and on the 60 day suspension that will lapse.

Mr Meijer stated that this section stated that the Minister may provisionally suspend the magistrate from office if it was shown to his satisfaction that the magistrate was not fit to hold office and the matter was set down for an inquiry. Mr Kgomo had been presented with the charge sheet and his attorneys requested a postponement. The Magistrates Commission had acted correctly.

Mr Julius asked what effect it would have should the NPA request the Commission not to hold its hearing at all.

Mr Meijer replied that the Commission would take that decision, on the basis of the evidence which they had. The Commission would in fact, in this instance, be able to get the criminal record which would be to the benefit of the Commission.

Ms Manalope suggested that since the NPA was busy investigating the matter, this report should merely be noted.

The Committee noted the report.

Provisional suspension from office, Magistrate I W O M Morake, Lichtenburg
Mr Meijer stated that Mr Morake was being represented by Senior Counsel, although he was suspended without pay at the moment. This matter was part-heard and was postponed to today, 18 March. Mr Morake was intending to testify and progress was being made on this inquiry.

The Committee noted the report.

Provisional suspension from office, Regional Magistrate T R Rambau, Limpopo province
Mr Meijer stated that Mr Rambau was charged with corruption. On 6 October 2014 he resigned and therefore the hearing was withdrawn, since the Commission no longer had jurisdiction over him, as he was no longer a magistrate or judicial officer.

Provisional suspension from office Mrs R M Malahlela Aspirant Additional Magistrate, Delmas
 

Mr Meijer took the Committee again through the explanation he had given earlier.

Discussion
Mr  Nzimande asked whether the hearing against Ms Malalhela was likely to be stayed, as there had been an application that it not proceed.

Mr Meijer responded that the notice of hearing was served on her legal representatives personally and the Commission had not heard anything back from them, for over a month.

Mr Michalakis asked how the Commission was dealing with the constant delays of hearings, which could in some cases drag on for years. He wanted to know if there was any system in place to reduce those delays.

Mr Meijer said that the accused in these cases had a right to a fair trial and it was left to the presiding officer to hear complaints or grievances addressed to him/her by the Commission on the question of delays. The Commission tried to put pressure on presiding officers to complete the cases within the shortest possible time. It was possibly - but not ideal - to proceed without all parties present, as then the officer must deal with the cross examination. Initially, if parties wanted to take points or make applications to court, there was nothing that the Commission or the presiding officer could do as the process was then not in their hands.

Mr Nzimande noted that the fact that the suspensions were being prolonged should not affect the justice system and the ruling of the courts. Justice needed to be served in order that it proceed smoothly.

Mr Meijer repeated that he noted the concerns of the Members but said that how fast the matters could proceed was largely out of the hands of the Commission. If magistrates were suspended without pay, the moneys saved on their salaries could be used to appoint another magistrate, but this still did not mean that the Magistrates Commission could hasten the process. In fact, this was a small number of the total magistracy as only 1.4% of magistrates were under suspension. Parliament was dealing with the issues.

The report was noted.

Committee minute adoption
Minutes of 19 November 2014
One Member asked that the initials, not only the surname be noted in the minutes.

Ms Manalope proposed, under item 14.4, that the Committee replace the second sentence that made reference to the "past apartheid struggle", leaving out the word "past".

Mr Nzimande wanted clarity on the paragraph that Ms Manolope queried, asking for a summary of what it was about.

Mr Julius answered that it was a motivation for the Vietnam visit, but the Committee had debated the issue already so it was not stated in these precise terms in the document.

Mr M Mhlanga (ANC, Mpumalanga) noted that no reasons should be included in the minutes for apologies; this revealed personal information.

Mr M Mohapi (ANC, Free State) fully agreed, saying that he was "appalled" at how they were noted.

The Chairperson agreed and said in future the fact of apology would be noted only.

The minutes were not adopted, but referred back for correction.

Committee minutes 18 February 2015
The minutes were adopted by the Committee, with no amendments

Draft Report of Committee's oversight visit to KwaZulu Natal
Ms Manolope proposed that the Committee Secretary should take the Committee through the requests for amendments raised in the last meeting.

Mr Julius noted that the minutes of 19 November 2014, at page 3, item 12, set out five matters that he believed needed to be changed in this draft Report, and suggested that the Committee focus on those items.

Mr Gurshwyn Dixon, Committee Secretary, referred Members firstly to page 10 of the draft Report. At point 6.5 the Regional Court and District Court statistics were mentioned. These were reflected in documents handed in by the Department. He had added Annexures A and B to emphasise the statistics.

Mr Julius mentioned that in paragraph 12.4 of the minutes, there was mention of an additional separate Sexual Offences Court that needed to be created. However, this Report made no recommendation on that point.

Mr Dixon said that there was reference to a Sexual Offences Court under point 7.2, dealing with the magistrates courts. This stated that there was need for new infrastructure, repair and upgrading. It also mentioned, under point 7.2.3, that the current court building did not have a Sexual Offences Court and that it was necessary to have a separate place to accommodate child victims.

Mr Julius emphasised that within the building, there was a need to cater for a separate and additional Sexual Offences Court. He felt this should be incorporated as a specific recommendation.

Mr Dixon noted that what happened in practice was that the entire court building would be constructed, and then separate rooms would be assigned to different courts. He enquired if Mr Julius was suggesting a completely separate building.

Mr Julius stressed that in the recommendations section, it should be clearly stated that there was a need to create a special court dedicated to Sexual Offences cases.

Mr Dixon drew Members' attention to page 3 of the minutes of 19 November, and page 10 of the current report, under 6.4, at bullet point 5. The drafting of this point had been a collaborative effort and the Content Advisor was not available at the moment. He asked if it correctly captured what Members had been trying to say.

Mr Dixon pointed out further that in the minutes of 19 November, under item 12.5, there was note of a report from local government to assess the new taxi rank. However, this was now reflected, in the draft Report, as a recommendation that local government must investigate the taxi rank and assess the security for the Magistrate's Court, and report back within 14 days.

The Committee adopted the revised draft Report.

Preparation for International Study Tour: update
Mr Dixon noted that he had, as requested, approached the Department of International Relations and Cooperation (DIRCO) to inform them about the Committee's options for the study tour. The first option had been a visit to Vietnam and South Korea. The second was a visit to Brazil, Mexico and Columbia. He asked the DIRCO to check the availability of the countries, and whether they would be able to accommodate a study group.

It was reported that South Korea and Vietnam parliaments would not be in session at the time that the Committee had planned to leave - from 29 June to 20 July - but Members may wish to re-schedule the tour here to the end of the year. The DIRCO had advised that the Committee not visit Mexico at the planned time either, because Mexico would be undergoing an election, and the whole administration of the country could have changed to a new one. The Parliament in Columbia would be sitting, and DIRCO was awaiting confirmation whether it would be able to host the Committee. Brazil had confirmed that it could host the Committee at this time. Mr Dixon was presently getting quotations on the costs from the various countries, but needed a decision from the Committee as to which they wanted to visit, before finalising these.

Mr Michalakis suggested that, while still waiting on approval, Members should perhaps also consider other options, and compare the most beneficial.

Mr Nzimande thought it imperative to get an African country involved. He wanted the study tour to become a standing item on the agenda.

Mr Hlanga stated that he was not sure of the purpose of visiting other African countries, and also noted a number of security issues in the Continent. He asks why the Department had suggested that this Committee visit Africa, whilst others were visiting Europe. He wanted the option to bring back the best knowledge to Africa and did not believe that Africa was not ideal for a study tour to showcase this knowledge.

Mr Michalakis suggested that the Committee should focus on what it wanted to achieve from the study tour and who would be the best country to give guidance. He emphasised that this would involve taxpayers' money, and the Committee needed to be clear about what it wanted to learn, and where it could best learn it.

Ms Manolope appealed that the Members should carefully read the documents; she felt that the Committee was going back on certain issues and suggested also that the Secretary needed to be very brief when outlining issues to Members, since they should have read the documentation in advance.

Mr S Thobejane (ANC, Limpopo) supported the suggestion that the Committee visit Brazil. It was, firstly, part of BRICS and engagement with it would be useful. Secondly, Brazil had one of the highest crime rates in the world and hopefully South Africa could learn from the lessons it was applying in the security field to bring that down, and prevent South Africa from becoming another country with crime rates at very high levels.

Mr M Chetty (ANC, KwaZulu Natal) noted that the DIRCO had advised against the Committee visiting Mexico because of the pending election, but he would have believed it very useful for the Committee to observe whether a new administration had adopted new best practices or was merely taking on the practices of the former administration. He saw merit in visiting a country where elections were taking place, and to see the new transition. If the Committee took DIRCO's advice and did not visit Mexico, then it must seriously think about what Members were hoping to get out of the trip.

The Chairperson thought valid points were made; the Committee was going to learn. He agreed that little could be learned from other African countries, urged that the Committee should choose the country offering the most learning opportunities, and that if DIRCO did not approve, it must motivate this.

Mr Mohapi emphasised that the study tour was not one dimensional, and this Committee must also share its experiences with other countries. South African input was highly valued in the world.

Mr Dixon again asked Members to confirm which countries they would choose. The Committee must decide which countries would offer the best outcome, and DIRCO was willing to assist, whatever the choice. He noted that the report on this was already in the programme, in answer to Mr Nzimande. The Committee Researcher had looked in to Ghana, and that was one African country that may merit a visit. However, he emphasised that the Committee was fast running out of time to make the plans. It was necessary to make a decision today, to allow him to make arrangements.

A formal proposal was made to plan the visit to Brazil and Columbia.

Second Term Programme 2015
The Chairperson requested that this be postponed to the next meeting.

The meeting was adjourned.