Magistrates' suspension from office; Protection Disclosure Amendment Act regulations

Meeting report

The Chairperson welcomed Members and said the meeting’s agenda had been circulated. He noted two apologies from Mr M Mohapi (ANC; Free State) and Ms B Engelbrecht (DA; Gauteng).

Mr G Michalakis (DA; Free State) added that Mr M Chetty (DA: KZN) sent his apologies as well.

Magistrate F Jasone-Twala – Provisional suspension

The Chairperson stated that the first report was on the provisional suspension from office and the withholding of remuneration of Magistrate F Jasone-Twala and he asked the Committee Secretary, Mr G Dixon to run the Committee through that report. The Committee would be going through each report and the decision to adopt the report would be done immediately after every report.

Mr Dixon stated that he would be dealing with the provisional suspension first.

The Chairperson asked if there were two reports in one, one dealing with the provisional suspension and the other with the withholding of remuneration.

Mr Dixon confirmed that that was the case.

The Chairperson asked what the reason was for there being two separate reports.

Mr Dixon responded that it was two separate orders; the Magistrates Commission would normally suspend the person first while continuing to pay their salary. However, the Committee indicated to the Commission that it was unhappy with the Commission taking so long with the suspensions while providing full remuneration. If the circumstances of the case were such that they should withhold remuneration from the beginning then it would have to be in terms of the Act, hence the two separate orders they requested. On the two orders, one was for provisional suspension for cases pending the disciplinary hearing and the other was the withholding of remuneration which the Committee had to consider separately.

The Chairperson asked if the Committee had agreed to that.

Mr Dixon responded that the Committee had agreed and that there were no objections to it at the meeting.

The Chairperson said the Committee would perhaps look at this going forward based on the merits of the case, because he was not sure if a blanket approach would assist and it should be considered on a case by case basis.

Mr Dixon pointed out that he had picked up an error on the first page of the report. The heading was supposed to be 'the Security and Justice on the provisional suspension from office of magistrate' rather than 'withholding of remuneration'.

The Chairperson asked that the Members correct the error on their documents.

Mr Dixon stated that Ms Jasone-Twala was an additional Magistrate at George. She was suffering from alcohol dependency and was still on probation. According to the Magistrates Commission, they had done everything in their power to assist her. They had sent her to rehabilitation and emotional therapy but unfortunately it did not improve on her work ethic and she was more off than on. Based on this the Magistrates Commission was not recommending her to the Office of Magistrate, they were doing the disciplinary process instead.

Discussion

Mr Michalakis said the report was self-explanatory and moved that the recommendation be confirmed.

Mr D Ximbi (ANC; Western Cape) seconded the motion.

The Chairperson asked if there was no descending view. The Committee upheld the Commission’s recommendations. The report was agreed to as tabled.

Magistrate F Jasone-Twala – Withholding of remuneration

Mr Dixon stated that while the matter was pending, the Commission was recommending that remuneration be withheld from Ms Jasone-Twala, because she was currently on suspension. The Committee would need to confirm the determination.

The Chairperson stated that the second report was a twin of the first one and was recommending the withholding of the remuneration which means withholding of salary.

Mr Ximbi concurred.

Mr Michalakis seconded.

The Chairperson asked if there were any descending views. The report was upheld as tabled.

Magistrate MJ Kgomo – Withholding of remuneration

Ms Anthea Van Der Burg, Select Committee Content Advisor, stated that she would be dealing with the withholding of remuneration of Magistrate MJ Kgomo who was charged with corruption. It was alleged that he demanded and received R150 000 in exchange for influencing the outcome of an appeal. This matter had experienced many delays in terms of the criminal case against him and the disciplinary cases. It went back and forth in court, but the Commission held the view that the fact that he had been convicted on two counts of corruption justified the withholding of remuneration.

The Chairperson asked for the motion for the adoption if there were no issues.

Mr Michalakis moved that the report be confirmed.

Ms T Wana (ANC; Eastern Cape) seconded.

The Chairperson asked if there was any descending view. The report was agreed to as tabled.

Magistrate RM Malahlela – Withholding of remuneration

The Chairperson stated that the next report was that of magistrate RM Malahlela.

Mr Dixon stated that this was a contentious report because Magistrate Malahlela was on provisional suspension pending the outcome of the disciplinary hearing. At the time the Portfolio Committee and the Select Committee were dealing with the matter, and magistrate Malahlela had put through a High Court application to stop the Portfolio Committee from pronouncing on it, but there was no mention of the National Council of Provinces (NCOP). The Select Committee requested Parliament's legal advisors to advise whether the Committee could go ahead with the approving or considering of the report. The legal advisors advised that the Committee could go ahead with this because it was not mentioned in the application. Any order given by the court would rescind any other order the Select Committee would consider. The High Court application that came to the Select Committee in terms of the withholding of remuneration had not yet been considered the application in court. It will only be considered this week in court and the outcome of that application was unknown. The contention was with the withholding of remuneration while Magistrate Malahlela was still on provisional suspension.

Discussion

Mr Ximbi asked whether Magistrate Malahlela was currently getting paid or not.

Mr Dixon responded that in terms of the Act, if the Magistrates Commission determined withholding, the Minister would confirm, and the Magistrate's salary would be withheld. Parliament on the other hand could confirm, amend, or take a decider. So, at the moment Magistrate Malahlela was not receiving a salary. Parliament would then have to indicate whether it is happy with that decision or whether they want an amendment of the decision.

Mr Michalakis stated that it was very clear in the report that the High Court application had been dragged out for almost four years now. This was not due to the actions of the Magistrates Commission but the actions of the Magistrate herself. He proposed that if the matter was really that important to the Magistrate, she would have done everything in her power to make sure that the matter was settled as soon as possible. She had been made, according to the report, aware of this process and he therefore moved that because of the delay, the Magistrates Commission recommendation be confirmed with the suspension of the Magistrate's salary.

Mr Ximbi added that he agreed with Mr Michalakis and that he was always worried about the delay in such cases because those people could be suspended for 20 years whilst getting salaries.

The Chairperson asked if it was a fact that the delays were at Magistrate Malahlela's behest because that was what he had a problem with.

Mr Michalakis responded that the report and a presentation had been received a few times on Magistrate Malahlela and the Commission confirmed the delay and postponement every time as being due to the Magistrate. It could not be reasonable for the tax payer to be required to pay these salaries.

Mr Michalakis moved for the adoption and Mr Ximbi seconded.

The report was agreed to as tabled.

Magistrate JF van Schalkwyk – Withholding of remuneration

The Chairperson stated that the next report was on the withholding of remuneration of Ms JF van Schalkwyk dated 29 November 2017.

Ms Van Der Burg stated that Ms van Schalkwyk had 18 counts of misconduct against her and the Magistrates Commission also had several submissions saying that the disciplinary proceedings had also been delayed substantially. The report stated that Ms van Schalkwyk was still receiving the remuneration of a Chief Magistrate during the disciplinary proceedings. There had been more than four years of delays and not a single piece of evidence had been placed before the disciplinary enquiry. The Commission expressed that it held the view that Ms van Schalkwyk was deliberately delaying the process and that a determination by the Committee was hereby made to withhold remuneration and that this was justified in the circumstances. There was a High Court application in this case which was dismissed as seen on Paragraph 4.7 on page 3 and this was on the basis that due processes were not being followed. The High Court had dismissed the application as the Magistrates Commission clearly said that due process had been followed. The Commission was therefore recommending that her remuneration be withheld.

Mr Michalakis moved for adoption.

Ms G Oliphant (ANC) seconded.

The Chairperson asked if there was any descending view.

The report was agreed to as tabled.

Magistrate MD Hinxa – Provisional suspension

The Chairperson stated that the next report was on the provisional suspension from office of Magistrate Hinxa.

Mr Dixon stated that the Magistrate was alleged to have raped a young lady who went to police stations in the cluster where she was raped, but according to the Magistrates Commission, they refused to help her when they heard who she was charging. She then wrote to the Minister who then forwarded it to the Magistrates Commission. Based on that, the Magistrates Commission conducted a preliminary investigation and then during this investigation Mr Hinxa provided an affidavit from the NPA stating that they would not be proceeding with the matter and asked for the preliminary proceedings to be stalled. The matter was then taken to the Magistrates Commission to advise them on the matter. But the Ethics Committee which was the division that investigated decided to champion the cause and to take it further so that both sides could be heard because she was not getting any relief on the case. The contention came from the EFF who posed whether the innocence of Mr Hinxa had come into account as he had been charged an provisionally suspended. Their question was how false accusations were taken into account seeing as he had an affidavit attesting to the fact the she was apparently paid to lay the charge. Based on what the Magistrates Commission had been saying to the Committee, they just wanted to her each side and at the moment they were afraid that Mr Hinxa would interfere with the case, hence the provisional suspension was what they were asking for.

Ms Oliphant stated that Mr Hinxa must be suspended.

Mr J Mthethwa (ANC; KZN) seconded.

The Chairperson asked if there was any descending view. The report was agreed to as tabled.

Mr Michalakis interjected stating that it was necessary for the Committee to stress to the Magistrates Commission that the matter not be delayed but be dealt with quickly and effectively.

Magistrate IWOM Morake – Suspension/removal from office

Ms Van Der Burg stated that with Magistrate Morake the Magistrates Commission was requesting suspension from office. The matter was from 2010 and the Magistrate was charged and incarcerated for a period and the Magistrates Commission had determined to withhold Mr Morake remuneration which was confirmed by Parliament in 2011. Mr Morake was currently not receiving any remuneration and his whereabouts were unknown according to the Magistrates Commission since his last appearance at the misconduct enquiry.

Discussion

Mr Michalakis asked for clarity on the matter of salary being suspended before the person was suspended because normally the person would be suspended then salary suspension would follow. He wanted to understand how it happened the other way around in this case. He then added that he was in favor of the report and moved for its adoption.

Mr Dixon explained that Magistrate Morake was provisionally suspended pending the outcome of the disciplinary matter and the case against him. The case took a long time and the Committee instructed the Commission to withhold remuneration and then they submitted to the Minister to withhold remuneration because at that time the High Court had passed judgment to say he was guilty and sentencing would occur six months in the future. The Committee said there was no reason to continue paying him since he was found criminally guilty even though he might have appealed the judgment. He is now suspended.

The Chairperson asked what the provision of the law was in such circumstances.

Mr Dixon responded that the Magistrates Commission could withhold remuneration at any point if the circumstances warranted it.

Mr Michalakis moved that the report be adopted.

Mr Ximbi seconded.

The report was agreed to as tabled.

Magistrate VT Gqiba – Withholding of remuneration

Mr Dixon stated that the Magistrate was still on provisional suspension. She had committed some fraudulent activities which were uncovered. The case was currently pending, and the Magistrates Commission was wrapping up its findings. The Commission was trying to prevent the delays that magistrate's often use.

The Chairperson asks if the Magistrate had been found guilty yet.

Mr Dixon responded that she was not found guilty yet.

Ms Oliphant stated that she did not understand how people were suspended and still in the offices.

The Chairperson asked that Mr Dixon reread the motivation for the Committee to better understand the matter.

Mr Dixon stated that he would have to go back and check certain facts on what was happening in this case.

Mr Michalakis stated that he wanted some clarity on what the National Assembly said.

Mr Dixon apologised and stated that the Magistrate had actually already been suspended as seen on page six. The question is on the NCOP withholding remuneration, but the Magistrate had a High Court application pending which the Committee had not heard word about from the Magistrates Commission. The Portfolio Committee had decided to wait for that application before pronouncing and the question was whether the NCOP would take the cautious route and wait for the High Court application outcome.

Mr Mthethwa stated that the matter had been taken to the House and the House agreed. National Assembly did not proceed with the matter but according to the House the matter was finished. The report was taken and accepted by the House.

Mr Michalakis asked whether the decision made by the House was to confirm the suspension or to confirm the withholding of remuneration because that would have an effect on the decision the Committee was going to take. If a decision was already made on the withholding of remuneration, then the matter had been dealt with already and should not be gone back to. If it was just the suspension, then there needed to be clarity on that so that the decision for now is clear and if this was the case then he proposed that notice be taken of the decision of the Portfolio Committee and for the Select Committee to wait for the High court decision.

The Chairperson ruled that the report be removed in order for the Committee to get more information.

Mr Dixon stated that the Magistrate had been suspended and the Magistrates Commission dealt with that part and had sent the withholding of remuneration to the Committee. He stated that he was happy to go back and double check.

The Chairperson stated that the legalities around the High Court should be checked.

The members agreed for it to be withdrawn.

Protection Disclosure Amendment Act regulations for comment

The Chairperson introduced item nine which was the regulations which would be brought to the Committee formally for approval.

Ms Van Der Burg stated that the regulations and the letter from the Minister were sent out last week. The regulations gave effect to Section 8 of the Principles Act which was the Disclosures Act. Section 8 referred to disclosures made in good faith to the Public Protector, South African Human Rights Commission, the Commission for Gender Equality, etcetera. In terms of this section, the Minister was asking, on paragraph three of the letter that Members comment on the inclusion of the Chairperson of the NCOP as person to which protected disclosures can be made to in terms of alleged accounts affecting the NCOP. The letter from the minister required the Committee to comment by the beginning of the current week but Mr Dixon had requested an extension as the Committee was still waiting for legal advice on the matter.

Mr Dixon stated that he had first gone to the Chairperson of the Council since the matter was referred to the Committee by the Council. The Minister had been written to but was yet to respond. The request was for an extension for 8 June 2018.

The Chairperson state that the comments were not limited to the issues of the NCOP, but the Committee could comment on the entire document on the regulations.

Mr Michalakis moves that they wait for the legal advice, giving Members the opportunity to also prepare their thoughts on the document.

Mr Mthethwa seconded this.

Consideration and adoption of minutes

Minutes dated 28 March 2018

The Chairperson moved for the amendment of page 4, asking that when recording the recommendations from the Ethics Committee, it should be qualified to 'the Ethics Committee of the Magistrates Commission' because an outsider would not understand what Ethics Committee they were speaking about.

Minutes were adopted with amendments.

Minutes dated 18 April 2018

Mr Michalakis thanked the Chairperson for his stance during that meeting and said the Chairperson displayed a proper sense of being there for the benefit of the House and not in a partisan way. He then moved for the adoption of the minutes.

Minutes were adopted.

Minutes dated 16 May 2018