Magistrates Commission on suspension of magistrates/removal from office & withholding of remuneration

Meeting report

Briefing by Magistrates Commission

Adv Cassim Moosa, Chairperson: Ethics Committee, Magistrates Commission, informed the Committee of the determinations of the Commission and sought confirmation of its recommendations in respect of the following cases:

Ms F K Jasone-Twala

The purpose of the report was to inform Parliament on the provisional suspension from office of Ms Jasone-Twala, an Acting Additional Magistrate at George, pending the outcome of an investigation into her fitness to hold office as a magistrate as required by Section 13(3)(b) of the Magistrates Act, 90 of 1993. There were allegations of misconduct by the Magistrate and prima facie evidence that she suffered from alcohol dependency which had a detrimental effect on her performance. She had been on probation since 2012 and her probation had been extended twice by the Commission’s Appointment Committee, but there seemed to be a progressive deterioration in her conduct.

The Commission recommended that Ms Jasone-Twala be provisionally suspended from office pending the conclusion of the inquiry into her fitness to hold office, and also to withhold her remuneration pending the conclusion of the misconduct inquiry against her. However, Ms Jasone-Twala had resigned from office on January 12 2018, and had recently died on March 12 2018.

The Commission sought the Committee’s confirmation to enable it conclude and close the case against the magistrate.

Mr MD Hinxa

A complaint alleging rape had been lodged with the Minister of Justice against Mr Hinxa, Chief Magistrate of Bloemfontein. The complainant alleged that the matter had been reported to several police departments, but they had all refused to open the case. Before the matter was presented to the Commission’s Ethics Committee, Mr Hinxa had presented a sworn statement to the former secretary of the Commission indicating that the complainant had been bribed to implicate him, and that no case should be filed against him. The complainant had denied ever making or signing the statement. The names and signatures on the letter of complaint and the statement differed substantially.

A preliminary investigation conducted by regional magistrates had been conducted, and the conclusion was that Mr Hinxa should be charged with misconduct. Mr Hinxa had also sued the Magistrates Commission before a High Court. Based on the findings of the preliminary investigation and Mr Hinxa’s response, the Commission recommended that Mr Hinxa be provisionally suspended in line with the provisions of Section 13(3) (a) of the Magistrates Act, 90 of 1993, because witnesses may be intimidated if he were allowed to be in office.

The Commission sought the Committee’s confirmation of the provisional suspension of Mr. Hinxa because of the grievous nature of the crime that has been alleged against him.

Ms JF Van Schalkwyk

Ms Van Schalkwyk had been provisionally suspended from office by the Minister on June 4 2013 as a result of numerous allegations of misconduct. She was still receiving the remuneration of a chief magistrate while disciplinary proceedings were pending against her. She had been unable to furnish the disciplinary committee with any evidence in her defence for four years after her suspension. She had challenged the promulgated regulations and Code of Conduct of Magistrates before a High Court.

The court had dismissed the application with costs in favour of the Commission. She had thereafter proceeded to the Supreme Court of Appeal. The court had ruled in favour of the Commission and dismissed her application. The Commission believed that Ms Van Schaklwyk was deliberately delaying the disciplinary process against her while being remunerated on monthly basis.

The Commission was of the opinion that withholding Ms Van Schalkwyk’s remuneration was justified and sought the Committee’s confirmation for the withholding her remuneration.

Mr M J Kgomo

Mr MJ Kgomo, Additional Magistrate, Randburg, was arrested in 2013 on charges of corruption. It was alleged that he had demanded and received the sum of R150 000 in exchange for positively influencing the outcome of an appeal for extradition in a particular matter. He had been placed on provisional suspension since February 2014, but had been receiving remuneration. The misconduct against him had been kept in abeyance pending the progress made in the criminal matter at the request of the National Prosecuting Authority (NPA), which believed that a disciplinary inquiry against Mr Kgomo would prejudice the state’s criminal case against him.

He had been convicted on two counts of corruption, although his sentencing had not been concluded. The fact that he had been convicted justified the withholding of his remuneration pending the finalisation of the misconduct inquiry against him. The Commission therefore recommended that his remuneration be withheld, in line with the provisions of Section 13(4A) (a) of the Magistrates Act, pending the conclusion of the disciplinary inquiry against him. 

The Commission sought for the Committee’s confirmation for the withholding of the remuneration of Mr Kgomo.

Ms R M Malahlela

Ms Malahlela was an additional magistrate at the Delmas District Court and had been appointed to the lower court bench. She was still on probation before being provisionally suspended from office in 2014. Her permanent appointment could not be finalized due to her poor performance, irregularities in her work, absenteeism from office, refusal to execute lawful orders, major delays in handing down judgments, failure to finalise matters and poor utilisation of court time. Her evaluation report indicated that she was not a fit and proper for appointment as a magistrate. Medical reports indicated that she suffered from major depressive disorder and panic disorder.

The Ethics Committee had resolved that a judicial quality assurance report on the judicial performance of Ms Malahlela be submitted to the Commission for consideration. The following concerns had been raised from the report:

• Ms Mlahlela had made mistakes in the criminal court that were not in line with her experience on the bench and had had a negative impact on the right to a fair trial;
• She had a long outstanding debt for private phone calls made from the land line of the office;
• Partly heard matters prior to 2010 had taken years to finalise;
• There was history of strained relationships between her and the local attorneys, the prosecutors and the administrative staff, etc.

The Commission’s Ethic Committee had resolved to conduct a preliminary investigation in other to determine if there were grounds for any charge of misconduct against Ms Malahlela. The investigation report had recommended that she be charged with misconduct and a charge sheet comprising of 29 counts of alleged misconduct had been served on her. She had filed a notice of motion at the Guateng High Court seeking a declaration that the Commission’s decision to charge her with misconduct was unlawful. The disciplinary inquiry had been kept in abeyance pending the determination of the High Court application. The court had postponed her application to afford her an opportunity to instruct a legal representative. The Commission had been advised that Ms Malahlela had requested that the court furnish her with reasons for its decision, but had not taken any steps to further her application, thereby causing the misconduct inquiry to be deliberately delayed.

She was still on probation and receiving her remuneration. An acting magistrate had been appointed in her place, resulting in the Department paying extra costs. On November 7 2017, the Commission had invited Ms Malahlela to furnish the Commission with reasons why her remuneration should not be withheld, but had not received any response from her or her representatives. She had tendered her resignation in January 2018.

The Commission had determined to withhold Ms Malahlela’s remuneration pending the conclusion of the disciplinary inquiry against her, in line with due process, despite her resignation. It therefore sought the Committee’s confirmation for the withholding of the remuneration.

Ms VT Gqiba                                                 

Ms Gqiba, Chief Magistrate, East London, was charged with various counts of misconduct in line with Regulation, 25(i) and 25(b) of the Regulations for Judicial Officers in the Lower Court, No. R. 361 of 11 March, 1994. She had allegedly made a false statement with a view to obtaining privilege in relation to her official position, and had submitted to the Department of Justice and Correctional services a subsistence and transport claim for travel and subsist

Based on the evidence presented, Ms Gqiba was found guilty on both counts of misconduct, and it had been recommended that she be removed from office. Based on this recommendation, she had been suspended on September 13, 2017. She had filed a motion of notice at the Gauteng High Court Division seeking a review and setting aside of the recommendation that she should be removed from office. The National Council of Provinces(NCOP) had passed a resolution not to restore Ms Gqiba to the office of magistrate, although the National Assembly was yet to pass a resolution on this matter. Given that Parliament was not in session, it might take some months before it passed its resolution.

The Commission therefore sought a resolution of the Committee confirming withholding of the remuneration of Ms Gqiba.

Mr I W O M Morake

Mr Morake was a magistrate and judicial head at Lichtenburg. The Commission had charged him with six counts of misconduct, one of which related to the fact that the regional court in Lichtenburg had convicted him on two counts of theft and sentenced him to four years’ imprisonment on each count. His application to appeal the conviction had been struck out. He had served his sentence from January 2016 and had been released at the end of 2016. The disciplinary inquiry commenced by the Commission in April 2011 had been kept in abeyance pending the outcome of the criminal case against him. After the conviction, the inquiry had commenced in April 2012. Mr. Morake had been found guilty on five counts of misconduct and it had been recommended that Mr. Morake be removed from office

The Commission requested that Parliament should confirm Mr. Morake’s suspension from office and recommend that he should not be restored to the office of magistrate.

The Commission concluded that although there were there were four matters in court from the reports above, there were technically only two matters pending before the courts, because Ms Malahlela had resigned as a magistrate and Ms Van Schalkwyk’s application to the appeal court had been struck out, and she was yet to appeal further to a higher court. The existing matters that were awaiting the determination of the court were the cases of Ms Gqiba and Mr Hinxa.

Mr Hans Meijer, Magistrate: Magistrates Commission, informed the Committee that the Commission was rigorously opposing and defending the pending applications against its decisions.

Discussion

The Chairperson asked the Commission to confirm that Ms Jasone-Twala had passed on. He asked if the decision of the Committee on the matters still pending in court should not be considered sub judice, since the principle of sub judice applied to the Magistrate Commission. In the case of Ms Van Schalkwyk, had she submitted a motion of appeal against the decision of the High Court? The secretary should circulate the legal opinion given by Parliament’s legal unit on the case of Mr Hinxa to the Committee. Was Mr Gqiba, who had been recommended for removal from office, still being paid his remuneration despite the recommendation?

Ms G Oliphant (ANC, Northern Cape) asked the Commission to give a summary of what was being requested from the Committee on each case. What was the timeframe in respect of suspension imposed on the erring magistrates, and also the timeframe that each case was expected to be concluded, as there should be procedures in place in respect of resignations? In the situation where the magistrate had resigned, why should there be a request for confirmation that the remuneration should be suspended, since remuneration automatically stopped once an employee resigned. In the case of Ms Jasone-Twala, who has passed on, the case should be closed and any benefits paid to the family. This was because even in cases before the courts, the matters were usually struck off once the plaintiff died.

Ms T Mokwele (EFF, Northern Cape) asked if the Committee had the right to request a timeframe for each case. Had all the evidence been examined in the case of Mr Hinxa, who had been accused of rape and then subsequently alleged that the victim had withdrawn the accusation on the ground that she was bribed to implicate the magistrate. She said that the Commission did not seem to have examined all the evidence properly, since there were no ongoing investigations considering this new piece of evidence. Could any of the magistrates resign despite pending litigation?

Commission’s response

In response, Adv Moosa confirmed that Ms Jasone-Twala had died on March 12.

There was no pending application before any court in the case of Ms Van Schalkwyk, although the Commission could not confirm whether she would file another motion at a higher court, although there was no evidence that she would proceed to a higher court. The Commission had asked for suspension of her remuneration as she may want to delay the conclusion of the matter, considering that her legal fees were not paid from her pocket but by the Public Servants Association (PSA).

On whether the decisions of the Committee would be sub judice as a result of pending cases in court, the Committee’s decisions would not be sub judice or considered as acting ultra vires. The Commission did not want to set a precedent where magistrates would sue the Commission in order to delay any sanction that would be meted out to them. 

The Commission charged a magistrate with misconduct only after a thorough investigation had been carried out in line with the provisions of Section 26(1) of the Magistrates Act and the Commission was satisfied that there was sufficient evidence to charge a magistrate. There were numerous checks and balances when it came to charging magistrates with misconduct. In Mr Hinxa’s case, the Magistrates Commission had thoroughly dealt with the allegations, as the investigation had been carried out by two regional magistrates before the Commission had decided to proceed with the disciplinary measures.

Mr Meijer said that Ms Jasone-Twala was still on probation because of her misconduct. The Commission had resolved to withhold her remuneration and was awaiting the confirmation of Parliament. She had delayed the conclusion of the matter by suing the Commission. She had later resigned and thereafter passed on after the Commission’s resolution to withhold her remuneration.

Mr Hinxa had been suspended, based on the recommendation of the Commission. He was still being paid his remuneration because there was no resolution to withhold his remuneration. As a result of the outcome of the preliminary investigation on the allegations levelled against him, the Commission had recommended that he should be provisionally suspended without remuneration. The preliminary investigation had been thorough and never one-sided.

Ms Malahlela had been charged with misconduct in 2013. The matter before the High Court had been instituted by her but she had not made any move towards pursuing the matter. The Commission had recommended that her remuneration be suspended because she was intentionally delaying the conclusion of the case. Although she had resigned, the Commission sought the confirmation of Parliament to enable it close the case.

In the case of Ms Gqiba, the Minister had suspended her from office and the NCOP had passed a resolution not to reinstate her as a magistrate. She had earlier requested early retirement from January 2018, which had been turned down because the matter was still pending. The Commission considered it appropriate to withhold her remuneration.

There had not been any advice from the State Attorneys as to whether Ms Van Schalkwyk would further pursue the matter further to the Constitutional Court.

In conclusion, Adv Moosa said that the Commission was open to any suggestions from the Commission in respect of the contents of their reports and briefing.

The Chairperson reminded the Committee that the meeting was not for deliberation of the cases, but rather to get clarity on the reports presented by the Commission.

Adoption of Committee’s 2014-2019 Strategic Plan

Ms Anthea Van der Burg, Content Adviser: Select Committee said some of the factors that would influence the work of the Committee in the coming year included an assessment of progress made in terms of the National Development Plan (NDP), as well as media reports on issues such as the increased killings of police officials and security risks presented at police stations, increased attacks on Correctional Services officials, and the dissatisfaction of military veterans regarding the receipt of their benefits.

Some of the legislation that may be presented to the Committee included the Cyber Crime Bill, the Traditional Courts Bill, hate crimes legislation, the Firearms Control Amendment Bill, the Critical Infrastructure Bill, and the Defence Amendment Bill.  The provinces that the Committee had not visited were Gauteng, the Western Cape and Limpopo, and the focus of activities would be on the Western Cape and Limpopo.

The mandate of the Committee included overseeing the Departments of Justice and Correctional Services, Police, Defence and Military Veterans and their entities. It also interacted with civil society and stakeholders of the respective departments reporting to it. The Government’s priorities, as spelt out in the State of the Nation Address, also impacted on the Committee’s priorities.

The key priorities of the Committee in the second quarter of 2018/2019 financial year would be:

• Strengthening oversight and accountability in order to improve the performance of departments;
• Enhancing public involvement in the passing of legislation through public hearings and submissions;
• Deepening engagement in international forums by improving relationships with international counterparts in order to learn and adopt practices from these countries; and
• Strengthening cooperative governance by engaging with provincial legislatures to improve the oversight function over departments. 

Discussion

Mr D Ximbi (ANC, Western Cape) said that while he was in support of improving relationships with international counterparts by visiting those countries, it would be necessary to go to advanced countries for the Committee to learn and adopt advanced practices that were related to security and justice.  

Ms Mokwele (EFF, North West) said that although she had not been part of the strategic planning, she was sure that the Committee had evaluated its previous performance before planning for the second quarter. There were some outstanding issues from the previous year’s oversight visits that had not been finalised. There had not been any follow-up visits to the Northern Cape and Free State, and oversight visits should not be done only for the sake of compliance, but for growth and improvement of services to the communities. On the countries to be visited, there should be thorough research before determining which should be visited.

The Chairperson said that oversight visits should be followed up on and concluded, and not seen as mere compliance. The Committee should ensure that their responsibilities were properly executed, especially following up on oversights visits to ensure compliance with the issues raised.

Ms Patricia Whittle, Parliamentary Researcher: Select Committee said that they had concluded research into Botswana and Kenya as regards the areas of challenges and successes. The hierarchy of Botswana’s customary courts and the appeal system may be useful to the Committee. There seemed to be very little that could be taken from Kenya as their criminal justice system had raised some red flags internationally.

The Chairperson said that the Committee Members may be split up to allow for the necessary follow-ups on important issues.

Ms Mokwele said that it is important that the Members be split up for oversight visits to the provinces so that the Committee could cover more ground, and this should be done immediately after Parliament returned from recess.

Ms Oliphant said that the Committee has not resolved between Kenya and Botswana on the country to visit. She felt Rwanda should also be considered.

The Chairperson said that more research should be done on the countries before the determination of the Committee.

The Strategic Plan was adopted.

The meeting was adjourned.