Progress Reports on provisionally suspended magistrates: Magistrates Commission briefing; Committee interaction with presentation

Meeting report

Briefing by Magistrates Commission on progress reports dated 18 September 2016 on provisionally suspended magistrates

Mr Hans Meijer, Magistrate, Magistrates Commission, presented progress reports on provisionally suspended magistrates, beginning with the report of Mrs R Malahlela. The Commission has previously reported that Mrs Malehlela was charged with misconduct and the charge sheet was served on 5 March 2014 and on 18 June 2014, she filed a Notice of Motion at the North Gauteng High Court. In the Notice, she cited the Commission in the matter. She applied for a court order inter alia to declare the Commission’s decision to charge her with misconduct to be wrongful and unlawful. This application was opposed and the Commission commenced with a disciplinary hearing. The presiding officer, on the request of the defence, ruled that the disciplinary hearing be placed on hold pending the outcome of the matter in the High Court. This matter is currently pending in the High Court. The Commission has not yet received a date. The Commission has learnt from the State Attorney’s office from doing follow up enquiries that Mrs Malahlela did not proceed with her application. The Commission thereafter requested from the State Attorney’s office to place the matter on the roll. The Commission is currently waiting on that in order to continue with the enquiry.

Ms Lesego Makolomakwe, Magistrate, Magistrates Commission, subsequently presented progress report on Mr I W O Morake. Mr Morake was charged with theft and a misconduct hearing commenced thereafter. He was convicted on 11 April 2011 and there was a delay because he intended to file an application for leave to appeal. The hearing for the case was set for 26 September 2016 after parties had filed heads of arguments to the Presiding Officer on the merits and demerits of the case. On that day, all the parties convened but the legal representative of Morake informed the parties that Mr Morake was sick and proceedings could not proceed. Mr Morake is currently incarcerated, he started to serve his sentence on 27 January 2016. The hearing is at a stage where the parties only need to address the presiding officer because heads of arguments have already been delivered.

Ms Makolomakwe moved on to discuss the progress report of Mr M J Kgomo. Mr Kgomo is a Magistrate in Randburg and has been charged with corruption. The criminal trial is proceeding. The Director of Public Prosecutions requested that the Commission consider placing the misconduct proceedings in abeyance pending the conclusion of the criminal matter. The Commission resolved that the misconduct proceeding will be suspended until the finalisation of the criminal matter. The Prosecutor leading evidence advised the Commission that the State is only left with the evidence of four witnesses. The State hopes to close the case at the date that has been set down for trial. This will then bring the criminal case to its conclusion.

Ms Makolomakwe then gave an overview of the progress report concerning Mr L Zantsi. Mr Zantsi was a Magistrate in Laingsburg and he pleaded guilty in his misconduct hearing. While the State was still proceeding with the criminal charge of Mr Zantsi for driving under the influence of alcohol, the Commission was informed that on 12 July 2016 he had passed away. The Commission has closed its file on this matter.

Mr Meijer also presented the progress report of the Chief Magistrate, Ms JF Van Schalkwyk. Ms Van Schalkwyk was charged with misconduct, her enquiry was postponed to 30 October 2016 for the defence to institute a motion application to the High Court inter alia to seek a declaratory order challenging the validity of the promulgated Regulations and the Code of Conduct for Magistrates. The Commission declared that it does not have a choice but to await the outcome of the High Court order because the matter goes to the very root of the existence of the Commission. It deals with the regulations. The defence argued that the regulations were promulgated by the Minister without any consultation with the Commission. The matter is set down for hearing on 30 January 2017. However, the Commission has proceeded with the misconduct enquiry irrespective of whether there is a High Court application or not.

Mr Meijer concluded with the progress report on conditional upliftment of Regional Magistrate Mr P Hole’s suspension by Parliament. Mr Hole was found guilty of misconduct and he took the Commission to the High Court. He requested that the decision of the Presiding officer to recuse himself to be set aside. The Commission requested to proceed with the misconduct enquiry irrespective of the High court application. The misconduct enquiry proceeded on 6 June 2016 and the Presiding Officer gave a written judgment, finding Mr Hole guilty of 10 charges. Mr Hole’s application to the High court was dismissed. The Commission is now awaiting for a decision to remove Mr Hole from office.

Discussion

Mr J Mohapi (ANC, Free State) noted that the case concerning Ms Malahlela had been ongoing since 2014. He commented that this case had been delaying for too long and wanted to know how much the case was costing the taxpayers.

Mr S Thobejane (Limpopo) also shared the sentiment that it did not seem like there had been any progress yet on Ms Malahlela’s case. This was frustrating that there is no conclusion after all these years. It is unfortunate and worrisome that the case is still pending.

Ms B Englebrecht (DA, Gauteng) read out the rules for remuneration for public servants and mentioned that the rules clearly stated that the period of suspension must be reasonable and if suspended,the person is entitled to a speedy and effective finalisation. There is need for a serious debate on the ground of what ‘speedy and effective finalisation’ means in the context of this case. Ms Malahlela had been on suspension for three years and she also wanted to know how much this was costing the taxpayer.

Mr G Michalakis (DA, Free State) asked whether Parliament could make a recommendation for continued suspension of salaries in order to limit costs to taxpayer. He also sought clarity why some salaries have been suspended and others have not been suspended.

Mr Meijer responded to the question about costs by stating that the average salary of a Magistrate is approximately R800 000 per annum, therefore the cost would be the annual salary multiplied by three. He acknowledged that it does cost the taxpayer a lot of money and the Commission shared the concern raised by Members.

Mr Meijer clarified that the Commission could determine to withhold remuneration if there is reason to believe that the particular magistrate is intentionally delaying the matter. The magistrate would then have to show cause why their salary should not be withheld.

Mr Meijer reiterated that the Commission shared the concerns with regards to the delay of some of the enquiries. It was important to note that the presiding officers in the misconduct hearings were also judicial officers and that the person that lead the evidence was also a Magistrate. He also agreed that misconduct enquiries against magistrates should be finalised.

The Chairperson requested that the Commission should submit the full costs of all the cases that were delayed.

Mr Mohapi wanted to know why the Commission was still pursuing the case with Mr Morake when he was currently incarcerated. Why was the misconduct hearing still continuing when it was already clear that Mr Morake was not fit to hold the office because he has a criminal record.

Ms Makolomakwe replied that the criminal proceedings and the misconduct hearing were different. Mr Morake was incarcerated because of a criminal offence. The misconduct hearing must continue because the proceedings ran parallel. Lastly, she mentioned that Mr Morake was suspended without pay.

Ms T Wana (ANC, Eastern Cape) wanted to know who was responsible for finalising the cases, was it the Commission or the Court. She stated that if it was the Court then the head of judiciary should be notified so that he could intervene.

Mr Meijer responded that the Commission made the decision to close the matter.

Mr M Mhlanga (ANC, Mpumalanga) said that presiding officers had a duty to conclude the case but that was not being done. This was not fair to society and there was a need to set a period for the conclusion of cases.

Mr M Chetty (DA, KwaZulu Natal) shared a concern regarding Mr Zantsi’s case and said that there was only relief when somebody died.

Mr Mohapi stated that it was a matter of concern that Mr Zantsi passed away without a verdict on his case being confirmed. He also wanted to know about the Wellness Programme of the Commission. He observed that many of the cases of misconduct dealt with alcoholism. Was the Commission is in the process of developing a wellness programme?

Mr Thobejane commented that he was also worried about the Commission's wellness programme.

Mr Chetty wanted to know why in the case of Ms Van Schalkwyk the misconduct proceedings were still continuing even though there was a High court application yet in other cases the misconduct hearings were placed in abeyance when there was an application to the High court. There was an element of inconsistency in this.

Mr Mohapi agreed with Mr Chetty and asked why are other cases not placed in abeyance.

Mr Meijer responded that each case is different and it depended on the merits and demerits of each case.

Mr M Mhlanga (ANC, Mpumalanga) stated that the Commission was not providing succinct feedback, the report did not have a conclusion and it was not clear because of how the feedback is structured. In his view, the report was also repetitive, had missing information, was confusing and should be taken back.

Ms G Manolope (ANC, Northern Cape) agreed that there were a lot errors in the report and supported the motion that the report needed to go back to the Magistrate’s Commission. This report was of a poor quality yet it was coming from the Magistrates Commission. The quality of the report undermined the members of the Committee.

A Member added that the reports were not clear and succinct and were not conducive to make a conclusion.

Mr Michalakis disagreed. He had no problem with the report and the feedback provided. The report made sense to him.

Mr Thobejane also requested a comprehensive report.

Mr Mohapi agreed that the Commission had not proof-read the report because the typing errors were far too frequent. He added that some parts in the report were not clear.

Mr J Mthethwa (ANC, KwaZulu-Natal) proposed that the commissioner must take the report back. The report needed to be corrected in order for it to be properly tabled back to Parliament.

Mr Meijer said the Commission would correct the report and make it more sensible. He would try to distinguish the reports and also distinguish the criminal and misconduct hearings. He would also add headings in the reports so that the reports are better understood.

The meeting was adjourned.