The Committee met to be briefed by the Magistrates Commission with progress reports on disciplinary hearings of 6 Magistrates charged with misconduct.
The Commission reported that Magistrate Morake had started serving his 4 year sentence in January 2016 emanating from a criminal conviction on 13 November 2011. Mr Morake’s misconduct proceedings proceeded in 2016 where the matter had been set down for argument by both parties to 26 September however because of Mr Morake’s ill-health the matter had been postponed where both parties had been instructed by the presiding Officer to agree on a date for arguments to be made. To date the MC has been provided with the correspondence between all parties concerned where it appeared that the matter would be set down for hearing on the 29-30 November 2016 for address and sentence on the misconduct inquiry.
The Commisison reported that Magistrate R Malahlela 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.
The Commission reported that Magistrate M J Kgomo had 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.
The Commission reported that Magistrate L Zantsi 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.
The Commission reported that Chief Magistrate, Ms JF 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.
The Commission reported that 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.
The Committee was concerned that the MC had continued with charging Mr Hole though the matter was before the High Court. Was it not jumping the gun for the MC to decide on matters pertaining to Mr Hole? What would happen if the High Court found that in did the Presiding officer should have recused himself from Mr Hole’s disciplinary hearing? It also wanted to know if Mr Hole was still finishing his part-heard matters since the upliftment of his suspension.
Was it not possible in the long term to create a dispensation where alternative dispute resolution for example in Mr Hole’s case; the instruction that he had to do partly-heard matters. What would be his state of mind in executing that function when he understood that there were actions to remove him from the bench? Some Members suggested that the Magistrates Act could be amended to to find a dispensation in which Magistrates charged with misconduct were able to appear than to use the normal court processes as they were worried about the financial implication both to the Commission and the individuals.
The Committee adopted its report on the Justice Administered Fund Bill.
Election of Acting Chairperson
The Committee secretary apologised for the Chairperson as he was absent and called for nominations for an Acting-Chairperson.
Mr S Swart (ACDP) nominated Ms C Pilane-Majake (ANC).
Mr S Maila (ANC) seconded the nomination.
Ms Pilane-Majake assumed the position of Acting-Chairperson. She outlined the agenda and immediately handed over to the Magistrates commission
Suspension of Magistrates: Magistrates Commission progress report
Mr Hans Meijer, Magistrate, Magistrates Commission (MC), said there were six progress reports the MC had to present to the Committee as prescribed by the Magistrates Act regarding the progress made in the misconduct inquiries of the six Magistrates who were provisionally suspended from office.
Two of the matters had been finalised with one matter still needing to be argued before sanction or judgements were imposed. Then there were three matters where decisions of the MC were being taken to the High Court.
Progress Report: Provisional Suspension from Office, Additional Magistrate M J Kgomo, Randburg
Ms Lesego Makolomakwe, Magistrate, MC, took the Committee through the progress report.
It had been alleged that he had demanded and received R150 000 (one hundred and fifty thousand rand) in exchange for positively influencing the outcome of an appeal for extradition brought by the complainant in the particular matter. The complainant had to face charges of corruption in another country amounting to R20 million.
The money had been recovered in Mr Kgomo's briefcase in his office and in his presence. The Court on 9 December 2013 granted Mr Kgomo bail to the amount of R30 000 (thirty thousand rand). The criminal case was postponed on several occasions for various reasons.
The Magistrates Commission charged Mr Kgomo with misconduct. A charge sheet dated 11 April 2014 was duly served on him. Mr Kgomo absented himself from office without leave or valid cause for the period 20 January 2014 to 04 March 2014, the latter being the day he was served with the Minister's letter informing him of his provisional suspension from office.
The Acting-Chairperson suggested that it could save time to get all the reports and then engage them all at once.
Mr L Mpumlwana (ANC) requested that the Committee deal with each individual case as they were quite few in total. He asked what Mr Kgomo was being asked regarding the reports.
Mr Swart interjected that the MC was simply updating the Committee and that there would be no decisions taken by Parliament on that day.
Progress Report: Provisional Suspension from Office, Magistrate L Zantsi, and Laingsburg
Ms Makolomakwe took the Committee through Magistrates’ Zantsi progress report on misconduct.
Mr Zantsi had been an acting magistrate since 03 May 2010 before his appointment at Laingsburg on 03 November 2013 The Commission, as a result of the complaints against him, resolved to extend Mr Zantsi's probation period for a period of six months from 1 December 2014 to 31 May 2015 or until such time that the investigation into the complaints have been concluded.
On 31 March 2016 Mr Zantsi submitted a handwritten document admitting all the allegations against him. He supplemented his written admissions by stating that he had made the admissions freely and voluntarily, without having been influenced and whilst in sound and sober senses. This satisfied the PO at the inquiry to find Mr Zantsi guilty on all 14 counts of misconduct.
The Director of Public Prosecutions: Western Cape during August 2015 instructed the Senior Prosecutor, Worcester to prosecute Mr Zantsi on charges of reckless or negligent driving and driving under the influence of liquor or drugs, alternatively that he was driving with an excessive amount of alcohol in his blood. Mr Zantsi's first appearance before a court of law was on 19 August 2015. The criminal case against him was remanded to 16 February 2016.
Mr Zantsi appeared to have been sick on this day. The matter was postponed to 05 and 06 April 2106. Mr Zantsi pleaded not guilty on 05 April 2016 and, on his request, the case was remanded to 06 May 2016, to 18 May 2016 and to 06 to 08 July 2016 to enable him to obtain a copy of the transcription of the disciplinary proceedings which were instituted against him and for trial.
Mr Zantsi appeared before court on 06 July 2016 and requested a further remand until 16 to 18 August 2016.
The Commission was advised that Mr Zantsi, when visiting Middelburg, Eastern Cape, however passed away on 12 July 2016. The Commission therefore closed its file on the matter and advised all parties concerned.
Progress Report: Provisional Suspension from Office, Magistrate I W O M Morake, Lichtenburg
Ms Makolomakwe said Magistrate Morake had started serving his 4 year sentence in January 2016 emanating from a criminal conviction on 13 November 2011. Mr Morake’s misconduct proceedings proceeded in 2016 where the matter had been set down for argument by both parties to 26 September however because of Mr Morake’s ill-health the matter had been postponed where both parties had been instructed by the presiding Officer to agree on a date for arguments to be made. To date the MC has been provided with the correspondence between all parties concerned where it appeared that the matter would be set down for hearing on the 29-30 November 2016 for address and sentence on the misconduct inquiry.
Suspension of Regional Magistrate Mr Ps Hole's
Mr Meijer took the Committee through Magistrates Hole’s progress report on misconduct. In Mr Hole’s representations he still relied on the fact that there was a High Court application pending and the MC could not act against him whilst simultaneously he had instructed his attorney to write to the State Attorney to have the mater removed from the roll, which was quite suspicious. The MC had requested the State Attorney in that regard to at least direct Mr Hole to offer the cost of the application.
The Acting-Chairperson wanted clarity on who had requested the State attorney to remove the matter from the court roll.
Mr Meijer replied that it was Mr Hole’s legal team.
The Acting-Chairperson asked Mr Meijer to repeat the charges against Mr Hole.
Mr Meijer said the charges were:
- On the 21 March 2010 in Kimberley, Mr Hole had prepared and distributed a letter addressed to Mr Nqadala, the regional court president in Kimberley. In the letter he commented, inter alia, that: “truth, honesty and integrity are the measure of a judicial officer. Bereft of such attributes Mr Nqadala is but a shadow of a man. I have known you since March 2007 and over that time have formed a strong view that you are a reasonably intelligent man not afflicted by a feeble memory. Having gone over your email on the 18 March a number of times to ascertain I was not mistaken with your words. I have discounted the possibility that the misstatements contained in your email are unintended; they are being manifestation of poor recall. Rather I am drawn to the inescapable conclusion that they are a conscious product of a deceptive mind. The grotesque misstatements of facts that you spew in your email makes me doubt the veracity of your solemn denial of participation in an evil plot against me. By these lies you have placed your credibility in serious doubt and nothing you say will ever be accepted by me at face value. By these blatant lies you have caused me to lose respect for you”.
The Acting –Chairperson interjected cautioning Mr Meijer against going into details but to rather read the charges.
Mr Meijer continued that the charges were about the contents and the tone of his emails to Mr Nqadala.
- He had conducted himself in a manner that was detrimental to the discipline or the efficiency of the administration of justice in that he had shouted at one of his colleagues to: ‘shut-up Mr Smit’.
- He had refused to answer questions relating to his court roll and chose to point fingers at other regional Magistrates and regional court presidents.
- He had failed to comply with a lawful order issued by the Regional court President on various occasions that a minimum of four trial ready cases had to be placed on the court roll. If there were less, then he was supposed to report that to the regional court President, which Mr Hole did not do.
Mr Meijer said that charge three related to charge four where Mr Hole again had failed to comply with a lawful order, in that he did not immediately report to the Regional Court President that his court had not sat the required three hours per day. There were a lot of incidences in that regard.
Charge five related to the fact that on 16 April Mr Hole had via the intranet email system publicised and commented on the regional Magistrates within the Northern Cape regional division issues pertaining to his profession saying ‘he was happy to see that other regional Magistrates busied themselves with what had to be the core of the Magistrates’ business rather than hatching evil plans of chasing bogus claims’.
Charge six was that Mr Hole had made a false statement in support of a request to be transferred, knowing that it was false. He had then requested the regional court president to give unlawful instruction to prosecute one of the accused by invoking section 342 and inquired with a view to obtain a privilege or advantage in relation to his official position.
Charge seven related to the fact that he had commented on matters pertaining to his profession in the media and therefore acted in a manner detrimental to the office of the magistracy in terms of contraventions of the code of conduct.
Charge eight related to the fact that he had caused a criminal case which was no longer on his roll to be placed before him since he had decided to subpoena the regional court president in a matter where he could not provide relevant information and by doing so had abused his power as a judicial officer. That had the effect of bringing the judiciary into disrepute as he had really lambasted the regional court president in court.
Charge nine related to a similar incident where on the 7 July in Kimberley Mr Hole had presided over a case and made intemperate remarks to the witness who was Mr Nqadala, the regional court president for a section 342 application enquiry. Mr Hole had said in open court: ‘do you need an interpreter? Do you call yourself a regional court president? Please wipe that smile off your face? Don’t you think Mr Nqadala you are a disgrace to the profession? Mr Nqadala you will agree that over the past year you have had complaints against you about the abuse of office, some of which emanate from yourself; is that not correct?’
The remarks had been disrespectful and distasteful and displayed an abuse of power from Mr Hole’s side.
Charge ten related to an incident on 12 July 2011 - whilst presiding over a case under the pretence of giving a recusal judgement, Mr Hole had commented on matters pertaining to his profession in open court where he had abused his power as a judicial officer again.
Mr Hole was found guilty of all those charges.
The Acting-Chairperson asked whether Mr Hole had been warned before the misconduct enquiry had been undertaken.
Mr Meijer replied that there had been a lot of email correspondence to and from the MC. The MC had conducted two preliminary investigations. It had no option but to charge Mr Hole.
The Acting-Chairperson asked whether Mr Hole was the Magistrate that had to be recalled.
Mr Meijer replied in the affirmative that Mr Hole’s suspension had been lifted on condition that he would finalise his part-heard matters and from the 29 part-heard matters only two were unfinished.
Mr L Mpumlwana (ANC) was concerned that the MC had continued with charging Mr Hole though the matter was before the High Court. Was it not jumping the gun for the MC to decide on matters pertaining to Mr Hole? What would happen if the High Court found that the Presiding officer should have recused himself from Mr Hole’s disciplinary hearing? What was the hurry in getting rid of him?
Mr Meijer replied that the MCs position up until recently was that as soon as a Magistrate had been charged with misconduct they delayed the disciplinary process. Taking a disciplinary process to the High Court; the MC had to consider each case on its own merits but asking for the recusal of the presiding officer of that process because he was of the same ranking, the MC had found Mr Hole to be without a case. In that regard the MC had directed the presiding officer to proceed with the disciplinary proceedings. Mr Hole’s legal team then requested that the matter at the High Court be removed from the roll; which meant Mr Hole would no longer be continuing with the High Court application.
The MC had only requested the State Attorney to place the matter on the roll so that at least the cost could be recovered from Mr Hole.
The Acting-Chairperson asked that the MC be allowed to finish all the progress reports so they could be interrogated together.
Progress Report: Provisional Suspension from Office, Magistrate R Malahlela
Mr Meijer said both disciplinary hearings for Mrs R M Malahlela and Chief Magistrate JF Van Schalkwyk were kept in abeyance pending High Court applications.
Mrs R M Malahlela had applied for an order of the court inter alia to declare the MCs decision to charge her with misconduct to be wrongful and unlawful. The application had been opposed and was before the High Court.
The MC had requested the State Attorney to expedite the matter and to attend to it as a matter of urgency to have the matter set down for hearing. The senior Magistrate which had been leading evidence therein had withdrawn from the matter as he was also the head of court of Mamelodi. Mr Meijer would thenceforth be leading the evidence of the disciplinary hearing of Mrs Malahlela.
Progress Report: Provisional Suspension from Office, Magistrate JF Van Schalkwyk
Chief Magistrate JF Van Schalkwyk had also been charged with 18 charges of misconduct. Ms Van Schalkwyk had on 14 August 2015 obtained a High Court order compelling the Minister and the secretary of the MC to provide the applicants with any information relating to the charges, which the MC had complied with. She had also applied to the High Court seeking a declaratory order challenging the validity of the regulations and the code of conduct for Magistrates. The State attorney had been instructed to oppose that application where a date had been set down for the 30 January 2017.
The MC wanted the High Court to pronounce specifically on the validity of the regulations although there was the Van Rooyen matter where the Constitutional court (ConCourt) had declared that the regulations, code of conduct and the Magistrates Act were consistent with the Constitution as they were.
The Acting-Chairperson asked for the main charges against Ms Van Schalkwyk.
Mr Meijer said that Ms Van Schalkwyk:
- Would gamble during office hours.
- Ask colleagues to do her hair for her during office hours.
- Call Magistrates out of court to perform functions which were not related to their judicial functions.
- Borrow money from Magistrates and other persons, and pestered Magistrates for money as well.
She had asked one of her juniors, an acting Magistrate, to pay her apartment rental which she had been unable to pay for. There were accounts that she had accepted a substantial monetary gift from the sheriff for that particular Magistrate’s district in a cluster; which may have possibly unduly influenced her in the execution of her judicial duties and had created the impression that that was the case.
A second similar incident was where she was unduly influenced where she had accepted a gift; where a local attorney had paid for her accommodation to travel to Washington in November 2012. When the use of the credit card was not accepted, the local attorney had arranged that cash be handed to her which was equal to the requested amount. The perception created there was that Ms Van Schalkwyk could be compromised or prejudiced when handling cases of those local attorneys.
There was an instance in 2016 where she had made a false statement in a letter dated 2 May in response to the MC to the effect that: ‘I have not presided over any criminal matter in which Mr Malloy was the legal representative’. Mr Malloy was the attorney that had sponsored Ms Van Schalkwyks trip to Washington and he had appeared before Ms Van Schalkwyk on a criminal matter where she had granted bail for an accused represented by Mr Malloy.
The Acting-Chairperson asked whether conviction on a criminal matter meant automatic dismissal.
Mr Meijer replied that the Act initially had read that if a Magistrate had been found guilty of an offence; they were deemed to be guilty of misconduct and that was similar with abscondment. That matter had however been addressed by the ConCourt where it had found the matter to be inconsistent with the Constitution. There needed to be a disciplinary hearing to consider all the facts. Therefore the MC had to complete the full process of charging the Magistrate for having been found guilty of an offence. However; the processes depended on the seriousness and the nature of the offence committed.
Mr Meijer knew of numerous occasions where Parliament had found that when a Magistrate for the first time had been found guilty of drunken driving, they would not be removed from office. But if it related to the integrity of the Magistrate in terms of corruption or theft the picture changed drastically. The accused Magistrate had the right to procedurally fair and substantive administrative action against them in terms of the constitution.
The Acting-Chairperson conveyed the Committee’s condolences to the Zantsi family on the passing away of Magistrate Zantsi. She also wanted to know if Mr Hole was still finishing his part-heard matters since the upliftment of his suspension.
Mr Meijer confirmed that Mr Hole had two remaining matters which he would continue with unless the MC recommended that he be removed from office. He only presided on the matters and on the specific dates and therefore was not at the office full-time.
Mr Mpumlwana was concerned about Mr Hole’s case such that he felt the MC could have acceded to his request to have a different presiding officer unless the MC specifically wanted Mr Nqadala to deal with the disciplinary processes. For example if a Member of Parliament (MP) was taken to Judge Mr. Mpumlwana surely other things could creep in apart from the fact that they were both MPs. It seemed to him there was animosity in Mr Hole’s case and perhaps he would go out of his way to ensure that if there was a case to be made then it would be heard fairly and satisfactorily.
Mr B Bongo (ANC) wondered if it was not possible to find a dispensation in which Magistrates charged with misconduct were able to appear than to use the normal court processes since he was worried about the financial implication both to the MC and the individuals. Having a High Court application whilst there was processing of a disciplinary hearing deviated from the objective of the MC. Could alternative dispute resolution not be considered in the long term as a mediation mechanism where for example the fact that Mr Hole had to do partly-heard matters. What would be his state of mind in executing that function when he understood that there were actions to remove him from the bench? Mr Bongo did not believe such a Magistrate could deliver fair sanctions as his state of mind would not be in a space of dealing with judgements. It did not add-up that when the MC had already decided on the fate of a Magistrate it still wanted assistance from the said Magistrate. Additionally there could be no way of checking whether the emails were sent under psychological duress and therefore what provision did the MC have to counsel Magistrates as magistracy was a taxing profession. Mr Hole’s case was a matter of insults; what programmes did the MC have to mediate psychological pressure before instituting disciplinary proceedings?
Mr Swart said it was important to recall that the reason to uplift Mr Hole’s suspension had followed a High Court application which had been brought by outside third parties against the MC who said that if the MC did not allow Mr Hole to continue those part-heard cases; justice would be negatively impacted and said third parties had succeeded with the application. That had been why the Parliament had decided to uplift the suspension of Mr Hole to allow him to finish the part-heard matters. The allegations were all very serious and what was quite clear were the delaying tactics used in many of the case which was something the Committee had been grappling with. In the long term MPs that served in the MC could start thinking of alternative ways of processing those cases faster.
The Acting-Chairperson said that the suggestion of alternative dispute resolution where possible was something to be pondered.
Mr Meijer replied that in many instances after a preliminary investigation and if the matter was not that serious warranting a charge, the MC counselled a particular Magistrate. However, if allegations were serious then a formal misconduct enquiry had to be undertaken.
The Acting-Chairperson reiterated that alternative dispute resolution was being suggested where there were no criminal matters and it sounded like there were two cases where there was no criminal element.
Mr Swart said that as he understood Mr Bongo, he was suggesting alternative dispute resolution going forward because there was no mechanism currently and the MC was following the Magistrates Act and the regulations therefore for the six cases reported on it would be very difficult to start implementing that mediation process at that late a stage. Mr Swart supported mediation in the long term but not with those particular cases as some were five or six years old. The legislation could be amended to look at a process of mediation pre-misconduct enquiry going forward.
Mr S Matiase (EFF) said the Committee had to be careful about the choice of words it used in Parliament because talking about creating a dispensation or finding mechanisms to deal with minor offences were two separate concepts. Creating a dispensation was to create exceptions for certain matters. The law had to be upheld and there had to be insistence on judicial officers to perceive MPs upholding the law so that they understood there was an expectation on them to do likewise so that as and when, there were allegations of violation or any act of wrongdoing. That would be subjected to the professional code of ethics and a full enquiry to allow the MC to make a determination on that basis.
Mr Bongo said he was present therefore he was aggrieved by being interpreted like a book. He concurred with Mr Swart’s understanding of what he had been proposing. He reiterated his point on the financial implications to the MC and the individual Magistrates and that Parliament had to think creatively on how the MC processed misconduct investigations because it was unacceptable to process a disciplinary hearing over six years with a Magistrate in limbo or working under duress.
The Acting-Chairperson hoped the MC had noted the comments and concerns of the Committee going forward.
Mr Meijer thanked the Acting-Chairperson committing that they would convey the concerns of the Committee to the MC.
The Acting-Chairperson said the Committee had the draft report of the Portfolio Committee on Justice and Correctional Services on the Justice Administered Fund Bill. She then asked for adoption.
Mr Bongo moved for adoption of the Bill.
Mr Matiase noted a grammatical error.
Mr Maila seconded the motion.
The Justice Administered Fund Bill was adopted with technical amendments.
The Acting-Chairperson thanked the members and the meeting was adjourned.
- Report on Partly Heard Matters of Regional Court Magistrate, Mr P S Hole as At 12/09/2016
- Report by Magistrates Commission to Parliament on Progress With Finalisation of Part-Heard Matters
- Provisional Suspension from Office, Magistrate L Zantsi, Laingsburg
- Provisional Suspension from Office, Chief Magistrate Jf Van Schalkwyk, Kempton Park
- Provisional Suspension from Office, Additional Magistrate M J Kgomo, Randburg
- Suspension from Office, Magistrate I W O M Morake, Lichtenburg
- Suspension from Office Mrs R M Malahlela, Aspirant Additional Magistrate, Delmas