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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
18 March 2003
PROCEDURE FOR SUSPENSION OF MAGISTRATES: BRIEFING
Chairperson: Adv J H de Lange (ANC)
Documents handed out:
Vacation of office and discharge of Magistrates (Appendix)
The Committee discussed further possible amendments to be added into the Judicial Officers Amendment Bill. The Committee focused on the procedure for the suspension of magistrates that had been criminally charged. He noted that two stipulations were paramount in deciding to suspend such a magistrate. That is, the charge must be serious enough to warrant suspension and the Commission must have reliable evidence to prove such a charge. If these two stipulations are met, the magistrate may be suspended pending an investigation.
Adv de Lange welcomed the Committee and turned their attention to the document entitled "Vacation of office and discharge of magistrates." The Committee needed to consider whether the amendments proposed in the document should be added to the Judicial Officers Amendment Bill.
Mr Johan de Lange (Department) stated that Clauses 13(3)(b) and 13(4) were modified because they were found to be unconstitutional.
The Chairperson asserted that Clause (3)(a), which details the procedure for suspending a magistrate, should include a provision for parliamentary review. When the Minister, on the advice of the Commission, suspends a magistrate from office pending an investigation, he should then table his decision in Parliament. To have a magistrate suspended because of a pending investigation was ridiculous. A magistrate should not be automatically suspended because he is criminally charged. What if no evidence backs up the charge?
He brought the Committee's attention to court's finding concerning the "suspension of magistrates pending investigation." He noted that two stipulations were paramount in deciding to suspend such a magistrate. That is, the charge must be serious enough to warrant suspension and the Commission must have reliable evidence to prove such a charge. If these two stipulations are met, the magistrate may be suspended pending an investigation. He instructed Johan de Lange to add the provisions in the Bill and use the wording of the courts.
The Chairperson stated that investigations must start as soon as a magistrate has been suspended. The Commission would then have either 60 or 90 days to complete the investigation. He asked the Committee what time they preferred.
Ms S M Camerer (NNP) and Imam G Solomon (ANC) decided upon 60 days and the Committee agreed.
The Chairperson added that upon completion of the investigation, the matter should be referred to Parliament within seven days to deliberate on suspension and salary issues.
He noted that this was the final issue the Committee would discuss regarding the Judicial Officers Amendment Bill. Mr de Lange was informed that after he completed making the changes that were discussed, the Bill would be sent to the Judiciary for their input. After receiving their input, the Committee would discuss it and finalise the Bill.
The meeting was adjourned.
NB: See Annexure for par  to  of Van Rooyen judgment
"Vacation of office and discharge of magistrates
13. (1) A magistrate shall vacate his or her office on attaining the age of 65 years: Provided that-
(a) the Minister may, after consultation with the Commission, allow a magistrate-
(i) who, on attaining the age of 65 years wishes to continue to serve in such office; and
(ii) whose mental and physical health enables him or her to do so,
to continue to hold such office for the period that the Minister may determine; and
(b) if he or she attains the said age after the first day of any month, he or she shall be deemed to attain that age on the first day of the next ensuing month.
(2) A magistrate shall not be suspended or removed from office except in accordance with the provisions of subsections (1), (3), (4) and (5).
(3) (a) The [Commission may provisionally] Minister, on the advice of the Commission, may suspend a magistrate from office pending an investigation by the Commission into such magistrate's fitness to hold office.
(aA) [The Minister may confirm such suspension if] If the Commission recommends that [such] a magistrate be removed from office-
(i) on the ground of misconduct;
(ii) on account of continued ill-health; or
(iii) on account of incapacity to carry out the duties of his or her office efficiently,
the Minister must suspend that magistrate from office or confirm the suspension referred to in paragraph (a).
(b) A magistrate so suspended from office shall receive, for the duration of such suspension, no salary or such salary as may be determined by [the Minister on the recommendation of] the Commission.
(c) A report in which the suspension in terms of paragraph (aA) of a magistrate and the reason therefor are made known, shall be tabled in Parliament by the Minister within 14 days of such suspension, if Parliament is then in session, or, if Parliament is not then in session, within 14 days after the commencement of its next ensuing session.
(d) Parliament shall, within 30 days after the report referred to in paragraph (c) has been tabled in Parliament, or as soon thereafter as is reasonably possible, pass a resolution as to whether or not the restoration to his or her office of a magistrate so suspended is recommended.
(e) After a resolution has been passed by Parliament as contemplated in paragraph (d), the Minister shall restore the magistrate concerned to his or her office or remove him or her from office, as the case may be.
[(4) The Minister shall remove a magistrate from his or her office if Parliament passes a resolution recommending such removal on the ground of misconduct of the magistrate or on account of his or her continued ill-health or his or her incapacity to carry out his or her duties of office efficiently.]
(5) (a) The Minister may, at the request of a magistrate, allow such magistrate to vacate his or her office-
(i) on account of continued ill-health;
(iA) in order to effect a transfer and appointment as contemplated in section 15 (1) of the Public Service Act, 1994 (Proclamation R103 of 1994); or
(ii) for any other reason which the Minister deems sufficient.
(b) Any request of a magistrate contemplated in paragraph (a) (ii) shall be addressed to the Minister so that he or she receives it at least six calendar months before the date on which the magistrate wishes so to vacate his or her office, unless the Minister approves a shorter period in a specific case.
(c) If a magistrate-
(i) is allowed to vacate his or her office in terms of paragraph (a) (i), he or she shall be entitled to such pension benefits as he or she would have been entitled to under the pensions Act applicable to him or her if his services had been terminated on the ground of continued ill-health occasioned without his or her being instrumental thereto; or
(ii) is allowed to vacate his or her office in terms of paragraph (a) (ii),
he or she shall be deemed-
(aa) to have been removed from office to promote efficiency for reasons other than his or her own unfitness or incapacity; or
(bb) to have been retired in accordance with section 16 (4) of the Public Service Act, 1994 (Proclamation 103 of 1994),
as the Minister may direct, and he or she shall be entitled to such pension benefits as he or she would have been entitled to under the pensions Act applicable to him or her if he or she had been so removed from office or had been so retired, according to the direction of the Minister.
(6) For the purpose of a transfer and appointment contemplated in section 15 (1) of the Public Service Act, 1994, a magistrate shall be deemed to be holding an appointment in an institution as contemplated in that section.
(7) The period of service as a magistrate of a magistrate transferred and appointed under section 15 (1) of the Public Service Act, 1994, shall be reckoned as part of and continuous with his or her service in the public service for the purposes of leave, pension and any other condition of service.
"Suspension of magistrates pending investigation
 Since the Constitution makes provision for a judge to be suspended on the advice of the Judicial Service Commission pending its investigation, there can be no constitutional objection to a similar power being vested in the Magistrates Commission, pending an investigation by it into whether or not a particular magistrate is fit to remain in office.
 The fact that such a suspension takes place before the impeachment enquiry is held, is not necessarily open to objection. The nature of the allegation against the magistrate may, in itself, be so serious as to make it inappropriate for the person concerned to continue to sit as a magistrate while the allegation is being investigated. The Commission would have to have reliable evidence before it to warrant such action and it would have to conduct its affairs in a manner consistent with natural justice. If in the particular circumstances of the case its decision cannot be justified or if it has failed to comply with the requirements of natural justice, its decision would be liable to be set aside on review by the higher courts. That constitutes adequate protection against any possible abuse of this power.
 It follows that section 13(3)(a) is not inconsistent with judicial independence and that the appeal relating to this section must be upheld."