Magistrates Commission on progress reports and provisionally suspended magistrate; Revised Draft Rules for Promotion of Administrative Justice Act; UN Security Council Terrorist Proclamations

NCOP Security and Justice

02 September 2015
Chairperson: Mr D Ximbi (ANC, Western Cape)
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Meeting Summary

The Magistrates Commission presented reports on the progress with disciplinary proceedings involving provisionally suspended magistrates.

In one case, the magistrate was constantly delaying the case, and when he was available, only one witness could attend the hearing to testify. The Commission made it clear that the magistrate was not receiving a salary and had been suspended from office, pending the investigation, as confirmed by Parliament. In another instance, it was alleged that the magistrate had received R150 000 as a bribe for positively influencing the outcome of an appeal. The Commission had been asked not to resolve disciplinary proceedings until the criminal matter at the High Court had been completed, so as not to interfere with the state case. Another suspended magistrate had had his suspension lifted briefly so that he could deal with, and resolve, five matters before his court, and had been told that he must do so without delay.

Members raised concerns about the delaying tactics and how these could be avoided. The Commission admitted to being frustrated, but pointed out that these were all legal processes and were the constitutional right of the magistrates. Members also asked about the costs involved, the time taken for proceedings and the lack of background checks for initial hiring.

The Commission also presented on the case of a Laingsburg magistrate who had had 14 charges brought against him, largely connected to his alcoholism and his inability to work effectively as a result. Members felt that the Commission had not delved sufficiently into the root causes of the problem and that more support should have been provided. The issue of background checks and health questionnaires at the time of initial employment was raised, as the problem could perhaps have been addressed sooner. It was suggested that there was something amiss in the case, particularly with regard to the splitting of charges, and that the magistrate was not being treated fairly. A Member said race could be involved, as he was a black magistrate in a largely white area. The Commission dismissed the idea, highlighting the transparency of the Ethics Committee in place at the time, and the fact that all its members were black.

The Department of Justice briefed the Committee on the draft amendments to the Promotion of Administrative Justice Act (PAJA). The background was given, as well as the rules of procedure and the underlying principles behind the legislation. A question was asked about the consultation procedure, and this was answered by explaining the thorough two-step process, which took over a year to complete

A briefing was given on the Proclamations in respect of entities involved in terrorist and related activities identified by the United Nations Security Council. This outlined the international obligations on South Africa in respect of listings, and the legal frameworks in place. The discussion on this topic was largely related to the ways in which a record could be expunged in South Africa. The issue of Sudanese President Omar al-Bashir was raised and discussed in relation to the history of the issue so far, and the next steps for South Africa.

Meeting report

Briefing by Magistrates Commission on suspended magistrates
Mr Hans Meijer, Magistrate, Magistrates Commission, presented progress reports on suspended magistrates, beginning with the enquiry against Magistrate Itumeleng Morake. The Commission had commenced with the enquiry and various witnesses had testified, but the matter had been postponed on numerous occasions. Initially when evidence was to have been presented, both Mr Morake and his counsel had been unavailable. This had been followed by a number of postponements by Mr Morake, and when he was available, only one witness could attend the hearing to testify. Mr Meijer made it clear that Mr Morake was not receiving a salary and had been suspended from office, pending the investigation, as confirmed by Parliament.

Mr Meijer moved on to discuss the enquiry into the Magistrate, Mr M J Kgomo, who faced charges of corruption from the regional court in Randburg. It was alleged that he had received R150 000 as a bribe for positively influencing the outcome of an appeal. The Commission had been asked not to resolve disciplinary proceedings until the criminal matter at the High Court had been completed, so as not to interfere with the state case. Therefore the Commission was not pursuing the case until further notice. There would be an update on this matter in the next annual report.

Mr Meijer then gave an overview of the enquiry against the Magistrate, Mr P S Hole, who had originally been suspended from office. Of the 27 ongoing matters in the relevant court, Mr Holle had been concerned with only five. His suspension had been lifted briefly so that he could deal with, and resolve these five matters, and had been told that he must do so without delay.

Discussion
Ms G Manopole (ANC, Northern Cape) sought clarity on the progress reports and the other cases of enquiry.

Mr M Mhlanga (ANC, Mpumalanga) commented on what seemed to him to be a number of delaying tactics. He said that justice delayed amounted to justice denied, and this was what certain magistrates were doing.

Mr Meijer said that he appreciated the concerns raised by the Members. It was for the deciding officer to rule in these types of instances, and it was very difficult to strike a balance between the right to be heard and the right to legal representation, which was a constitutional right. The Commission did not want to sit with a process that was flawed because they were waiting to hear the case of an accused magistrate. He acknowledged that it was difficult, but if there were evidence of deliberate delaying tactics, the Commission would endeavor to resolve them.

Mr Godfrey Ramoroka, Secretary of the Magistrate’s Commission, said that delaying tactics were often used. He gave an example of one member who had used every tactic possible to cause a delay. He had launched a high court case to challenge the issue itself, without challenging its validity. This had had a long-term impact, in that the complete removal as presiding officer would mean that nothing could be done except suspension with full remuneration, and it was in the interests of the member to prolong cases to keep being paid. Although this was frustrating, it was the constitutional right of members to do this.

Ms T Mokwele (EFF, North West) asked about the cost implications. Could a case be heard with any of the main parties in abstentia -- most relevantly, the accused? What measures could be taken by the Commission to ensure that the effects of these delaying tactics were minimized? Was there a way to force parties to attend disciplinary hearings?

Mr Meijer agreed that it was a concern of the Commission that the enquiries took so much time. In Mr Kgomo’s case, he had delayed the criminal matter, which had directly influenced the disciplinary proceedings, and there was little that the Commission could do about this. The matter would be placed on the agenda of the Commission’s next meeting and addressed then.

Mr Ramoroka answered the question relating to the costs. He said every time that they postponed the matter when the member was on paid suspension, the Commission would have to get the Minister to appoint an acting magistrate, as they could not leave the court without a presiding officer. This was a significant expense. This was exacerbated by the fact that judicial officers were on a fixed rate of pay.

Mr Meijer presented on the disciplinary proceedings against the Magistrate, Mr L Zantsi, the only Senior Prosecutor in Laingsburg. He had been appointed by the previous Minister and had previously been an interpreter and prosecutor in the same court. A number of complaints had been made against Mr Zantsi, so the Commission had conducted an investigation into 14 complaints of misconduct. Some examples of the alleged misconduct were that he had a serious drinking problem, that he regularly reported to duty drunk, his son used drugs, that his use of alcohol prevented him serving his role effectively, and that he had used vulgar and racist language towards a female police officer. He had also told a petrol attendant that he had an arrangement with the garage owner to buy fuel on credit, which turned out to be false, and following this, he had refused to settle the debt with the petrol station. It was understood that despite recommendations that he should go to a rehabilitation clinic without delay, Mr Zantsi continued to drink. The Commission had recommended that he should be suspended from office immediately, and they were awaiting the filing and tabling of the report by the Minister.

Ms Manopole asked if there was a system of background checks in place in the process of hiring magistrates. She felt that the problem could not have surfaced suddenly and perhaps it could have been predicted earlier. She also wanted further information about the grounds for the extension of probation for magistrates, and why these extensions continued to happen, instead of just firing Mr Zantsi.

Ms Mokwele felt that alcoholism had root causes more often than not, and wondered what might have caused Mr Zantsi’s problem. It was her opinion that rehabilitation could do only so much and if these root causes remained constant, the risk of relapse was very high. She also wondered how big the caseload for magistrates was in Laingsburg and whether this could be a contributory factor to stress levels and the alcoholism itself.

Mr Ramoroka agreed that alcoholism might manifest itself over time. The current background checks were related to the work experience of the person. Unfortunately the Commission did not have the capacity to conduct thorough checks, and he raised the issue of the independence of the judiciary.

Mr Ramoroka felt that the root causes of alcoholism were important. He informed Members that Mr Zantsi was separated from his wife, whom he saw only on weekends, and had some financial troubles, partly due to the fact that his children were attending boarding school. It was understood that alcoholism was an addiction which made it difficult to have good personal financial management, and this may have been a cause of the petrol station incident.

He gave details of a wellness programme that was being developed by the Commission for magistrates in similar situations. The function of the programme was to aid the judiciary with their functions and to provide support. However currently there was a lack of funding for the project, so it had not yet been implemented. Further, it was difficult to have the project as it involved magistrates taking time off and this created gaps in the justice process, which was not desirable. They had tried to make the courses on weekends, but two-thirds of the magistrates were unwilling to attend such courses at the weekend.

With regards to the questions about background checks, Mr Ramoroka explained that in the case of Mr Zantsi, who had been a member of the Department for a long time, it was not necessary to do these checks as he had come through the processes before. He admitted that background checks could be a useful tool generally, though.

Mr Meijer dealt with the question of probation. There were provisions to extend probation to be able to have a positive report submitted, and guidance and mentoring was offered as well. With regard to the view that they should summarily dismiss, he explained that the Commission had to follow the enquiry procedures’ rules, in terms of section13.

With regard to the workload of magistrates, it was unlikely that anyone who arrived late and left work early, as Mr Zantsi had been doing, would be able to handle the workload. Mr Zantsi had had a number of options, such as calling the senior management or his cluster for support. The appropriate workload was assessed by way of an assessment of norms and standard practice, and it had been held that the work in Laingsburg was suitable for one person.

Mr M Mohapi (ANC, Free State) felt that the issue was a matter of discipline and that punitive measures were not necessarily a good idea. He was concerned that there may be something amiss with the case. In particular, there had been confusion surrounding why certain charges had been created, such as the consumption of alcohol and intoxication. He wanted to know more about the petrol attendant and the challenge of misconduct, for example, and if there had been an official written complaint. He was worried that this charge could be an orchestrated campaign against Mr Zantsi. The details were strange and he was concerned about the reasoning behind such a group of people coming together to create an affidavit about him. He wondered about internal measures and protective steps taken, to avoid the situation in the first place.

Ms Manopole concurred with Mr Mohapi’s concerns about the counts of alcohol and intoxication being treated as separate matters. She also asked about health questionnaires and whether one had been completed in this case, when Mr Zantsi had become a magistrate.

Ms Mokwele asked that her response be put on record -- that she felt there was a conspiracy of some sort going on in this case. She felt that race might be an issue, in that Lainsburg was a predominantly white area, yet Mr Zantsi was a black magistrate. She wished to highlight once more that the root causes of this addiction had not been addressed, and that these could play a big role in the problems. With regard to the incident with the female police officer, she averred that this could also be an issue of race, and that his vulgar language was probably in retaliation for something else. She wondered why they had seen similar cases before and the punishments had been less severe. This was, in her opinion, related to race.

Mr Mhlanga was interested in the composition of the ethics committee, and asked for further details of the people who sat on the Board. He emphasized that the need for transparency was paramount and wished for further clarification on the appeal process available to Mr Zantsi.

Ms Manlope wished to know the point at which the Commission had picked up the issue of alcoholism in Mr Zantsi’s case.

Mr Ramoroka stressed that justice must not only be done, but also be seen to be done. The issue of Mr Zantsi’s conduct had to be addressed, as it was important that magistrates remained upstanding citizens. He gave the example of a candidate who had lied about previous suspensions in an interview. He felt that there must be confidence when hiring, and that a good idea would be to have certificates of good standing.

He said that the Ethics Committee had many members and they deliberated with complete objectivity. The Ethics Committee looks at the cases, and appoints people who do not know the accused. It was not a witch-hunt or conspiracy, and that they usually appointed someone from a different province for ultimate objectivity. After the report was completed, the Chairperson signed it, to create a system of checks and balances. He said that the charges against Mr Zantsi had not been split, as Members had suggested.

Mr Meijer said that the suspension was not punitive, as it was with pay and was pending the finalisation of the enquiry of fitness to hold office. Mr Zantsi could appeal to the High Court. The commission had to protect the judiciary in this sense, although he did accept that there were concerns over the issue of speedy and fair trials.

Mr Ramoroka tackled a point raised about Mr Zantsi making a sacrifice to take the job as a senior prosecutor. He felt that this was not the case, as these jobs were well sought after because they were important steps on the way to becoming a high court judge, and were well paid.

He wished to stress that the wellness programme was extremely useful, but unfortunately the barriers in terms of commitment in time and the lack of resources made implementation of such a project extremely difficult. This was particularly relevant in regard to appointing temporary magistrates to act in court, and the need not to delay justice in any way.

Mr Ramoroka made it clear that the Ethics Committee was transparent, and also pointed out that the Committee consisted of only black members.

Mr Mhlanga said in response that the composition of the Committee should be balanced, and not just black.

Mr Ramoroka agreed with this statement.

Mr S Thobejane (ANC, Limpopo) said that it could be detrimental for Members to sit and listen to such briefings with a limited understanding of the relevant law and policy. There was a danger that looking at structures that they did not understand could lead to irrelevancy. He wondered what the point of these briefings was. He also wished to stress the importance of the power of the magistrate and the code of conduct.

Mr Mohapi said that in his opinion, these briefings were relevant and in order for justice to be done, it was necessary for Members to interact fully with the material provided. He also felt that his previous question had not been fully addressed and wanted further information on the 14 counts against Mr Zantsi.

Mr L Nzimande (ANC, KwaZulu Natal) commented that this matter had taken a sufficiently long time to discuss, considering the fact that there were six matters to cover in the meeting, and asked that they please move on.

The Chairperson agreed with this, thanking the Commission for the progress so far. He also commented that the magistrate had not been fired, but wondered why more had not been done to facilitate this.

Mr Ramoroka said that there was a charge sheet for Mr Zanti. This had not been provided, but if the Members were to see it, they would understand the reasoning behind splitting charges in the way that had been done.

He always wished to make his appreciation of the Members’ comments known. The feedback from the House was extremely valuable, and for the House to understand the workings of the Commission was important.

Mr Meijer added that the Commission tried whenever possible to support magistrates as it was a stressful job, and the last resort was dismissal.

The Chairperson thanked the Commission for the report and briefing.

Briefing on Revised Draft Rules for Promotion of Administrative Justice Act (PAJA)
The Chairperson allocated 15 minutes to the next briefing by the Department of Justice.

Adv Raj Daya, Chief Director and Secretary to the Rules Board, Department of Justice, presented a very brief summary on the revised draft rules. He said there had been a need for a draft revision to refine the rules from the previous legislation, and to take into account constitutionality. He outlined the rules of procedure and the review of the PAJA rules ,and how this had come about.

The underlying principles of the legislation were:

  • Retention of the existing review procedure, embodied in High Court Rule 53;
  • Non-adoption of a special procedure for PAJA reviews;
  • Alignment with existing procedural rules in both the High Court and Lower Courts;
  • Addressing shortcomings identified in the stated Pretoria High Court judgment.

He mentioned that there had been some delays in the process due to changes in administration and the fact that the new rules had been so heavily scrutinised by various parties.

Discussion
Mr Mhlanga wanted to know when the consultation had been done and the ways in which the Department planned to align itself with the programme.

Advocate Paul Farlam, for the Rules Board, answered the question on the consultation process. There were two consultation processes. The Board decided how the rules were devised, then comments were received so that the rules could be revised. The draft was then sent to the relevant role-players to make further comments. Following this, it was sent to the National Council of Provinces (NCOP), where a few drafting technicalities were amended, and this was given to the Minister to check and sign. This process was extremely thorough, and took over a year to complete.

Mr Daya invited Members who had any further questions to direct them to his e-mail, and he would answer them in writing. He welcomed any comments, clarifications and questions in this regard.

Briefing on UN Security Council Terrorist Proclamations
Major General Philip Jacobs: South African Police Services Legal Division, presented on the listings by the Taliban and Al Qaeda Sanctions Committee. A number of Proclamations had been made, and he referred Members to the PowerPoint presentation slides for further details.

He explained the international (United Nations) and national (Constitution of South Africa) legal contexts, and looked specifically at the obligations to notify the Security Council in respect of specific entities, as outlined in the presentation. He outlined key differences between the Taliban and Al Qaeda lists, both in terms of individuals and entities. He explained how the listing procedure worked, and referred Members to the presentation slides for further details and information on this.

The effects of listing were explained as the freezing of assets, an arms embargo and a travel ban, bringing in the international context. He provided an explanation on the delisting processes in terms of South Africa’s obligations, and further outlined the functions of the Ombudsperson who had been appointed. This included gathering information, reporting to the monitoring team and keeping in dialogue with the monitoring team.

Discussion
The Chairperson asked about people who were not aware that their daughters were married, or that their family member was a soldier. He used these illustrations of people often lacking in concrete information.

Mr Mhlanga raised the issue that in South Africa, people were not listed as terrorists yet there were problems with issues staying on record for too long and resulting in bans from other countries, especially America. He wanted to know how they could overcome the challenge of Interpol.

answered that it was always possible for these issues to be removed from record. There were certain procedures to do this, such as applying to the Director General under the Criminal Procedure Act for removal, including as a last resort, getting clearance from the President under the Constitution.

Mr Mhlanga raised the issue of Sudanese President Omar al-Bashir.

Maj Gen Jacobs responded that there was a court review ongoing. Advocate Jeremy Gauntlett had made a presentation in Pretoria, and the outcome of this had not been made available yet -- whether or not the case would be allowed to be appealed. From the government side, there was a specific section, article 98 of the Rome Statute of the International Criminal Court (ICC). This held that when there were conflicting matters between two states, Sudan could decide on immunity, as it was their President. However, Sudan was not a party to this treaty. He said that there were two sides to every story, and he was unable to comment further as a government spokesperson.

The meeting was adjourned.
 

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