My Vote Counts NPC v Minister of Justice and Correctional Services and Another (CCT249/17)  ZACC 17; 2018 (8) BCLR 893 (CC); 2018 (5) SA 380 (CC) (21 June 2018)
Promotion of Access to Information Act
The Portfolio Committee on Justice and Correctional Services adopted the draft programme on the appointment of the new Deputy Public Protector. It then proceeded to receive a briefing on the introduction of the Promotion of Access to Information Act Amendment Bill, which introduced requirements for the recordal, preservation and facilitation of access to information on the private funding of political parties and independent candidates. Committee members noted the need for this legislation to converge with the recently enacted Political Party Funding Act.
The Magistrate’s Commission then briefed the Committee on the matters of 4 magistrates facing disciplinary action: Mr Nzimande, Mr Hinxa, Ms Freeman and Ms Van Schalkwyk. The Commission noted its difficulties in getting these magistrates to face justice at independent tribunals given their willingness to use tactics including dismissal of attorneys, approaches to other courts, and even manipulation of regional contacts to obfuscate cases against them.
The Committee noted its disapproval of the mistreatment of women by Mr Hinxa (accused of rape) and Mr Nzimande (accused of sexual harassment). Members stressed that judicial officers being involved in this conduct made it unlikely that women would receive proper access to justice.
The discussion revolved around the capacity of the Commission and the slow progress of independent tribunals. The Commission responded that these magistrates were willing to use any trick possible to delay prosecution, but admitted that it would try to speed the process up.
The Chairperson welcomed the committee and presenters, and noted the apologies.
Draft Programme on appointment of DPP
The Chairperson ceded the floor to the committee secretariat to comment on the draft programme for appointment of the Deputy Public Protector.
The Secretariat noted they were requested to come up with a draft programme. They proposed a schedule as follows:
28 August: consideration of programme and draft advert.
29 August: Media section to post a media statement on the parliamentary website
6 September: Placement of advert for the position in the media
25 September: Candidates to be contacted to fill in a questionnaire
16 October: Uploading of candidates list and CV
Week of 21-25 October: shortlisting of candidates
Week of 28 Oct-1 November: screening of shortlisted candidates
Week of 4-8 November: 2 days provided for interviews
Week of 11-15 November: deliberations and report to the House
The Chairperson thanked the Secretariat and took Members’ comments.
Mr X Nqola (ANC) thanked the support staff for rapid execution of instructions, and indicated that the programme was coherent as is. He added the importance of distributing the advertisement to all levels of media houses.
Mr Q Dyantyi (ANC) agreed with Mr Nqola but advised that some touch-ups needed to be done. He noted that the National Assembly rose for 10 days in September so the Committee would only have 10 days in this month. In the current dispensation, the programme already missed the one-month notice requirement for employed people. For instance, if Lawson Naidoo of CASAC were a candidate, the Committee would have missed notice already. He proposed a page at the end of the programme evaluating risks to the calendar. He also questioned the proposed date for the return of the questionnaire: candidates of the calibre seeking the DPP position should not need 16 days to fill it in; and proposed the Committee could cut some fat.
The Chairperson responded that the administration would be dealing with most of the work during recess. He agreed with a possible cut to the 16 days for filling in of the questionnaire, but highlighted the importance of looking at the questionnaire first.
Adv H Mohammed (ANC) advised, based on his past experience, the importance of making details easily available about the advertised position in order to speed up the questionnaire process.
The Chairperson replied that some dates would be adjusted in the coming weeks and agreed with the issues made by Mr Dyantyi on risk matters. He took it that the draft programme would be accepted with the risk page amendment made, noting its nature as a draft programme.
The advertisement was accepted: Adv Mohamed proposed acceptance and Mr Nqola seconded.
Promotion of Access to Information Amendment Amendment (PAIA) Bill
The Chairperson moved on to the presentation of the draft Amendment Bill to the Protection of Access to Information Act.
Ms Noluthando Mpikashe, Legal Adviser: Constitutional and Legal Advice Office, Parliament of RSA, took the Committee through the proposed amendment to PAIA. The Amendment Bill was a result of a court judgment won by My Vote Counts NPC. PAIA was challenged on the grounds that it has failed to promote citizen access to information in terms of section 32 of the Constitution. The Case was that s32 read with s19 and s7 imposed an obligation on Parliament to pass legislation that provides for the recording and disclosure of information on private funding of political parties.
The Western Cape High Court’s judgment went to the Constitutional Court as it impacted on constitutional validity. The Constitutional Court declared PAIA invalid. The Constitutional Court ruled the state was under an obligation from the afore-mentioned sections to give meaningful access to information. The Court ordered Parliament to amend PAIA and take any other measure deemed appropriate to provide for recording, preservation and facilitation of reasonable access to information on the private funding of political parties by the end of December 2019.
Ms Mpikashe proceeded to guide the Committee through the draft PAIA Amendment Bill. She reminded the Committee it was still welcome to change the bill as long as it complied with the Constitutional Court judgment.
The Bill was proposing to insert a new chapter (2A) in PAIA, titled the Publication and Availably of Certain Records of Political Parties.
This chapter defined the terms “accounting officer” and “political party” in the same way as the Political Party Funding Act assented to by the President. S9(1) said that a political party must appoint an accounting officer. That person would be given duties and responsibilities. The Amendment Bill defines a political party as an entity which competes in elections, or is represented in a legislature, or an independent candidate to an election.
52B gives an obligation to the accounting officer of a political party (which is defined to include an independent candidate), to create and keep records of any money paid or donated by persons or entities to a political party which is more than R100 000; any money lent to the political party; any money paid on behalf of a political party; assets, services or facilities provided to a political party; and any sponsorships provided to a political party. The records must be available on social media platforms on a quarterly basis. Furthermore the clause requires that the records be updated and be made available on social media platforms of the political party concerned two months before the election of the National Assembly or provincial legislature and before municipal elections. Records had to be kept for a period of 5 years after creation.
Mr Henk du Preez, Senior State Law Advisor, Department of Justice and Correctional Services, highlighted the aim of proposed amendments would be to dovetail with the Political Party Funding Act. The Department preferred not to pre-empt processes and would wait for the Committee to receive public comments on the bill before it proposed to Committee on what it thought were technically sound provisions. For instance, the bill referred to “social media” which was a very wide term. With regards to the Constitutional Court judgment, when the Political Party Funding Bill was considered by Parliament, the High Court judgment was already available, and the Committee asked the legal adviser for input on whether it would affect the Political Party Funding Bill. It was then acknowledged that PAIA would have to be amended. In its judgment, the Constitutional court noted that it is up to Parliament to determine how access to political party funding information was promoted.
The Chairperson thanked the presenters, recalling that the Committee would be accepting public comments until the end of the month, and then dealing with them from the 17th of September. This presentation was important in the context of Members being well informed on the content of the bill when considering its adoption. The Chairperson welcomed input from the members.
Adv Mohamed, noting the importance of the Amendment dovetailing with the Political Party Funding Act, requested clarity on what this Act provided for in terms of disclosure.
Mr Nqola sought clarity on the deadline for the passage of the PAIA Amendment Bill, stressing the need for uniformity in the Bill and the Political Party Funding Act.
Mr J Selfe (DA) informed the Committee that recently the IEC had organised public hearings (see day 1 and day 2) on the Political Party Funding Act regulations and was processing thousands of public submissions on this. If the Committee wanted input, he suggested a briefing by the IEC on the matter.
Mr Du Preez responded that it was fairly easy to align the proposed amendments to PAIA to the content of the Political Party Funding (PPF) Act because the crucial definitions were set out in the Political Party Funding Act on donations and donations-in-kind. He admitted that after the President signed the PPF Act, regulations appeared as a second schedule to the Act, which was confusing. The disclosure amount of R100 000 was simply a proposal. This was the reason the PAIA Amendment Bill referred to the R100 000 disclosure threshold, but it would have to be amended in terms of the prescribed amount in the PPF Act. Taking care to align the two pieces of legislation was important, so in terms of possible contradictions, the PPF Act would guide the amendment to PAIA. The difference between the two pieces of legislation was that the PPF Act only related to parties that were elected or contested elections. The PAIA Amendment may also include the ambit for independent candidates. It would be easier to amend the PAIA Amendment Bill than the PPF Act. The Constitutional Court seemed to favour the automatic availability of the information mentioned. Currently there was a long process that could cost, and therefore not all citizens could access this.
Ms Mpikashe recalled the importance of the timeframe as the December deadline was approaching, hence the proposal of the Amendment Bill as a committee bill, which was faster to finalise than an executive bill. The Amendment Bill needed to be fast tracked without circumventing processes. She noted that the PPF Act drafter was in the parliamentary legal office – and thus the Amendment Bill was based on the PPF Act but had a wider scope due to the nature of the court judgment.
Mr Du Preez recalled that, shortly before the May elections, there was an urgent Constitutional Court application about the ability of independent candidates to run in national elections – the court said there was no need for the urgency. This case was currently before the Constitutional Court. This was another possible dimension to consider, although the ruling was unlikely to impact on the Amendment Bill at the current stage.
The Chairperson thanked the presenters for the briefing, noting the committee would deal with the Bill in September and try to meet the deadline.
Magistrates Commission Briefing
Adv Cassim Moosa, Chair: Ethics Committee, Magistrate’s Commission, introduced himself and Adv Hans Meyer, who was the Quality Assurance Magistrate, Magistrate’s Commission.
Adv Moosa submitted there were 4 matters to be reported back on. The last briefing had with the Portfolio Committee was in November 2018, and it reported back to the Select Committee in February 2019. Whereas the Magistrates Act of 1993 requires a report to Parliament every 3 months, the May elections prevented the Commission from making a presentation to the Committee.
Adv Moosa commenced with the matter of Mr ES Nzimande, the Regional Court President from Kwa-Zulu Natal Magistrates’ Court.
Adv Moosa requested the Chairperson’s permission to take a bit longer given the number of new members in the Committee.
Magistrate Nzimande was made Regional Magistrate in July 2000, and became the Regional Court President in July 2011. During the course of his tenure, the Commission received numerous complaints of misconduct against him. It was thus duty bound to implement an investigation in terms of regulation 26. Once evidence was presented by the investigating officer, the Magistrate’s Commission considered it and resolved to charge Mr Nzimande with misconduct. A charge sheet dated 31st August 2018 was served to Mr Nzimande on the 4th September 2018. Allegations faced by Mr Nzimande include bribery: one of the Regional Court President’s duties is the recommendation of regional court magistrates to act in his division. Mr Nzimande recommended a number of attorneys to the Minister of Justice and Correctional Services to act in his regional division. Mr Nzimande is alleged to have accepted payment from numerous attorneys in exchange for these recommendations.
There is also an allegation that between 2012 and 2015, Mr Nzimande unlawfully and wrongfully victimised and sexually harassed a regional court magistrate. Details were included in the report. This conduct fell far short of what one would expect of a judicial officer. On 25th October 2018, Mr Nzimande pleaded not guilty on all 50 charges against him.
The Magistrate’s Commission appoints serving magistrates to present or preside in disciplinary matters. Because Mr Nzimande is a regional court president, he is high up in the judicial hierarchy. The Magistrate’s Commission thus decided to appoint three regional magistrates as presiding officers, with two persons leading evidence. The Chairperson of the Magistrate’s Commission, Justice MF Legodi, proposed it would be appropriate to have not only 2 members leading evidence, but also someone from the office of the National Director of Public Prosecutions (NDPP). The delay had been in the appointment of a senior advocate from the NDPP Office to lead evidence. The Magistrate’s Commission recently received a communiqué noting that a person had been identified, so it would be able to proceed with the inquiry. Mr Nzimande was suspended from the period mentioned but was receiving remuneration. The Minister provisionally suspended Mr Nzimande from office in September 2018. Both the National Assembly and NCOP had to confirm these decisions, which they did. Currently the Magistrate’s Commission was ready to proceed with the inquiry after a suitable date was arranged.
The next matter to report on was of Mr MD Hinxa from Bloemfontein, who was the Chief Magistrate. The complainant was a 42-year-old woman from Botshabelo, who lodged a complaint with the Minister in 2016. The complaint went directly to the Minister as, at the time she wanted to report the case of rape by the Chief Magistrate, SAPS members sent her from pillar to post. The complaint was submitted to the Magistrate’s Commission from the Minister’s Office in November 2016. She had tried to report the matter but was never assisted by SAPS. Mr Hinxa communicated with the erstwhile secretary of the Magistrate’s Commission and produced a report from the Deputy Director of Public Prosecutions for the Free State indicating he would not be prosecuted. He additionally furnished a document proposing the complainant in the matter was paid R100 000 by a set of attorneys to make a false claim against him. The complainant denied this and continued to press her complaint against Mr Hinxa. The Magistrate’s Commission conducted a preliminary inquiry and charged Mr Hinxa with 2 charges of misconduct for unlawfully and wrongfully compelling the complainant to commit a sexual act with him. Mr Hinxa applied to the Gauteng High Court to interdict the Magistrate’s Commission investigation, but this application was struck from the roll with costs. The Minister decided to suspend Mr Hinxa, which was approved by Parliament. Mr Hinxa then applied for a review of the investigation against him. Mr Hinxa subsequently fired his attorney and has not appointed a new one. Having noted Mr Hinxa’s approach, the Magistrate’s Commission applied to strike his application and obtain costs. The Magistrate’s Commission deemed it appropriate to continue with the investigation, and therefore appointed a magistrate to preside and two magistrates to lead evidence. The investigation was slowed at multiple occasions at Mr Hinxa’s behest. In January 2019 the inquiry went ahead, and 4 witnesses testified. Mr Hinxa’s legal team asked for a postponement, then 3 more witnesses were interviewed, then another postponement was requested. The matter is set down for decision in September-October 2019. Mr Hinxa is still receiving remuneration.
The third matter was of Ms LB Freeman, Senior Magistrate at Mossel Bay District Court. The Magistrate’s Commission had received several complaints against Ms Freeman, and therefore conducted a preliminary investigation. A charge sheet containing 24 counts of misconduct was served to Ms Freeman in November 2019, containing charges relating to various acts of dishonesty in the period 2015-17. It was alleged that, on 21 occasions, Ms Freeman made false transport remuneration claims. She additionally claimed she had executed an inspection in loco which did not happen. She claimed for the use of an Audi A4 when in fact she was driving a Fiat Uno. She thus created problems for the public purse and fiscus. Ms Freeman also failed to disclose a previous conviction for theft. When she applied for the Senior Magistrate position, there was a part of a form asking for disclosure of directorships. During the course of the vetting process, it emerged that she was a director and founding member of a fishing cooperative company. She was also convicted on the 6th May 1993 in the Potchefstroom Magistrate’s Court on a count of theft. Once the notice was served, a disciplinary inquiry proceeded. Ms Freeman was unrepresented at the first appearance, and asked for a postponement to obtain legal representation. At the second appearance, she remained unrepresented. On numerous occasions, the inquiry was postponed due to lack of representation. When the inquiry was again postponed to September 2018, without giving notice, she approached the High Court for a ruling making certain statements clear to her defence. The Court ordered the Magistrate’s Commission to make these available. The Magistrate’s Commission complied. The matter proceeded, and ultimately judgment was handed down in July 2019, when the presiding officer found Ms Freeman guilty on all 29 counts. The sentencing will take place in September 2019. The Magistrate’s Commission also reported the matter to SAPS to investigate charges of fraud. The NCOP and NA confirmed Ms Freeman’s provisional suspension in 2018.
Adv Moosa finished with the case of Ms JA Van Schalkwyk, Senior Magistrate, Kempton Park Magistrate’s Court. He noted that this matter had been before the Magistrate’s Commission since 2013. As was evident in previous matters: when magistrates were faced with inquiries, they delayed proceedings intentionally by approaching high court for review applications, which of necessity take a long time. The Magistrate’s Commission does as much as possible to ensure the speedy completion of matters.
In respect of Ms Van Schalkwyk’s case, the Minister of Justice provisionally suspended Ms Van Schalkwyk in 2013, which was confirmed by Parliament. Having conducted the preliminary inquiry, the Magistrate’s Commission served Ms Van Schalkwyk’s attorneys with the charge sheet in 2013. The Magistrate’s Commission then appointed a presiding officer and evidence leader shortly after. Her attorneys wrote to the Commission objecting to the appointment of the evidence leader. The Magistrate’s Commission replied that the appointment was done transparently and in terms of legislation and regulation. If there was discontent with the evidence leader, Ms Van Schalkwyk should raise it at the inquiry. Once the charge sheet was handed to her, she requested further particulars with a high degree of specificity and a large amount of documentation: all of this was provided. The matter proceeded and was postponed on a number of occasions. She noted her appointment of Cilliers SC as defence. She then obtained a postponement and sought a declaratory order questioning the provisions and content of the Code of Conduct for Magistrates. She and 3 others requested the Minister of Justice to set aside regulations for judicial officers and the Code of Conduct for Magistrates through this declaratory order. Judgment in this matter was postponed until the High Court case was heard in March 2017, when judgment was reserved until August 2017 when the applicants’ case was dismissed with costs. The applicants then launched an appeal for a full bench or SCA judgment in 2017. On 8 November 2017, the High Court heard both parties and dismissed the leave to appeal with costs. Only then could the Magistrate’s Commission act again in terms of the disciplinary inquiry. The Magistrate’s Commission decided to push on with the misconduct inquiry. Ms Van Schalkwyk then proceeded to petition the SCA in December 2017. In March 2018, the SCA dismissed this with cost. The Magistrate’s Commission instituted proceedings 3 days after this SCA determination. In the hearing of April 2018, Ms Van Schalkwyk’s attorney obtained a postponement. Ms Van Schalkwyk’s attorney then informed the inquiry he was no longer in her employ. The inquiry requested Ms Van Schalkwyk to find new representation. It was eventually agreed that October 2018 would see a hearing, when evidence commenced being led. The matter was then postponed to 10-12 December 2018, and further postponed to January 2019. At this point, the evidence leader noted that Ms Van Schalkwyk’s attorney was involved in a fatal accident, which caused a delay. The matter proceeded and was postponed to July 2019 for further cross-examination. When the matter proceeded in July 2019, Ms Van Schalkwyk terminated her legal team and took up her own defence. With the Commission being faced with this type of conduct, it resolved that it was clear that Ms Van Schalkwyk was comfortable sitting at home receiving her salary and using funds to postpone the case nearly indefinitely. The Magistrate’s Commission approached Parliament to obtain the termination of her remuneration. Parliament acceded to this request and Ms Van Schalkwyk now receives no remuneration, despite only provisional suspension. Delays in the case have not been on the part of the Commission, which has attempted to stop any delays and protect the fiscus.
The Chairperson thanked the Commission. He enquired, with regard to Mr Nzimande’s alleged acceptance of payments, if any action been taken against those paying him?
Mr Meyer replied the matter had been reported to SAPS which was investigating. The Commission expected action to be taken soon.
The Chairperson asked whether it would not be appropriate to report them to a legal body.
Adv Meyer responded that, if there were no misconduct or charges, it was inappropriate for the Commission to report attorneys to law societies.
Mr Nqola thanked the presenters for the mention of the long duration of cases. He noted the embarrassing fact that there were SAPS officers who refused to help members of society when they had an allegation to file. The report said the complainant then wrote a letter to the Minister. Had there been a passage of information from the Minister of Justice to the Minister of Police as regard the misconduct of officials in this case? If yes, how far was the investigation on this matter? If members of society could not access police stations and could not report misconduct, this was an issue. If not, what role could the Committee play in terms of ensuring SAPS dealt with this matter?
The Chairperson noted this was more a question for the Committee itself than the presenters.
Adv Mohammed observed that it was clear from the reports that there was a clear trend of abuse of due process. The pattern of changing of representation indicated this. There was a way of dealing with that in civil and criminal cases. In investigative and disciplinary cases, maybe the law ought to institute the same proceedings. He inquired as to the capacity and resources of the Commission.
Ms W Newhoudt-Druchen (ANC) voiced her concern about the rising violence against women and children and the refusal of entities to assist them. What did the Magistrate’s Commission do when it heard of these issues? In relation to Ms Freeman, did the Commission not screen or vet candidates before they were appointed? One would assume that screening would have picked this up. In her view, the Magistrate’s Commission seemed to think that it had bottomless funding – did the Commission go into deficit and was its budget suitable?
Ms H Maseko-Jele (ANC) noted her shock that, on the matter of vetting of magistrates before employment, Ms Freeman managed to take her position without the Commission picking up her previous conviction – she felt like somebody did this deliberately. Surely this meant there had been no vetting? People had to be punished for such behaviour. If it was so hard to find a magistrate guilty in these matters, she could only imagine what was happening to people on the ground. Could the Committee come up with a way to make sure people were punished or paid for such behaviour?
Ms J Mofokeng (ANC) asked the Magistrate’s Commission for case numbers so it could follow up. Magistrates who were accused of rape themselves were likely to treat rape cases in a shoddy way. It was clear that chief magistrates generally liked to abuse power. In the Van Schalkwyk case, blame had be passed on to the Magistrate’s Commission for not evaluating magistrates before appointing them. Was there a debriefing of magistrates when they moved positions? She had dealt with domestic violence cases all the time, and many cases never reached legal satisfaction.
Ms Mofokeng claimed that magistrates in Pretoria abused their power, and made reference to stories in newspapers of magistrates looking for high profile cases. She added that the Magistrate’s Commission too often brought cases to the Committee that it should be able to resolve itself.
Mr Dyantyi submitted a few proposals in terms of the way forward. In relation to Mr Nzimande, he suggested there seems to be a modus operandi Mr Nzimande was operating under, wherein he would look for money from men to appoint them, and sex from women to appoint them. He was curious as to how many men and women were recruited. In the Hinxa matter, the first criticism he put forward was to the Magistrate’s Commission itself. He noted that rape was a criminal issue, but nowhere in the Commission’s report did it note that the victim was assisted in opening a criminal case – the Magistrate’s Commission could not be investigating a criminal matter. Had the Commission referred the matter to the police? Furthermore, the Commission seemed not to have been proactive in proposing interventions to the Committee. There had be a way to deal with the convergence of the abuse of institutions and due process. Should possible punishment not go beyond dismissal after inquiries, but possibly include striking off the roll of the legal profession? These people were rotten and did not belong in courts. There had to be stern measures to inhibit the abuse of courts. If the Magistrate’s Commission was not proposing any similar interventions, perhaps the Committee should give this some thought.
Prof C Msimang (IFP) reminded the Committee that South Africa was becoming the rape capital of the world – “our women rightly feel that they are not protected”. The committee had to act in this matter. It was even more concerning that a magistrate could do this to another magistrate who was fully aware of her power and rights – how must women in less powerful position deal with similar abuses? Another concern is what was happening to the fiscus when the state had literally run out of resources. There were people abusing the system, postponing cases since 2013 – what encouraged these people is that they were suspended on salary. What happened to the salary they had been collecting in all the years they were on suspension – did the state have a way of recouping these funds?
Ms Mofokeng interjected and asked about the Pretoria Chief Magistrate Mr D Nair. What was the progress in relation to the Bosasa matter and when would the magistrate be removed.
The Chairperson was not convinced that the Nzimande matter should not be reported to the law society. With our legal bodies there was a challenge – in some cases they moved very quickly to get people struck off the roll, in others not. He further argued that presiding officers were clearly too liberal with postponements. When we calculate the cost of postponements to the state, it was not only the salary to the suspended magistrates, it included all the indirect costs of time spent dealing with matters by the Magistrate’s Commission and the state. Reasonable postponements were necessary in the interests of justice – but when it was clear someone was playing the system it became a problem. The Committee needed to follow up with the Minister in the Hinxa matter.
Adv Cassim was pleased with the robust nature of questioning from the Committee. The Commission and the Committee were largely on the same page. He began his reply by sketching the structure of the Magistrate’s Commission. The Commission was comprised of a Chairperson (Hon Ledwaba J, DJP of the North Gauteng High Court), and several members from various organisations (Members of Parliament, Regional Court members, Magistrates, Organised Professions). Then there were sub-committees – he was Chair of the Ethics committee and had 9 members on his committee. Adv Hans Meyer was the leader of the Ethics division. When a complaint is logged, it is sent to the Ethics division which opens the file. There are 2 committees that are always busy: Appointments and Ethics. Previously, ethics matters were registered and deliberated on after a long time. He was of the view that these were matters that ultimately flew in the face of what the judiciary should be. The last bastion of any society is the judiciary, which should be beyond reproach. He thus called the Ethics committee to meet once a month to ensure rapid processing of cases. This body was under onslaught on a daily basis. Many court officers did not want the Ethics committee to exist and attempted to bring it into disrepute and disband it. These people preferred for these matters to be dealt with at their court level. The Magistrate’s Commission is an independent statutory body that deals with matters without fear, favour, or prejudice. Dealing with matters at a regional level would lead to friends dealing with friends. On Ms Freeman’s appointment, this was a failure of the appointment committee.
Adv Moosa noted that many of the cases the Commission was dealing with involved the highest levels of the judiciary. The higher one went in the system, the more difficult it became, as these people had lots of influence in their regions.
He agreed that the Hinxa case had to be reported to the Minister of Police. When it was reported to the Magistrate’s Commission, it noted the need for action as Mr Hinxa was highly influential. When the report was sent to the Magistrate’s Commission, Mr Hinxa got wind of it and the Commission received a letter from the Free State Director of Public Prosecutions declining to prosecute. A police docket was opened but the Free State DPP issued a nolle prosequi notice. The Magistrate’s Commission did not accept this and continued investigations and gathering of evidence. People would do anything to frustrate these investigations.
In terms of what MPs could do to help the Magistrate’s Commission, he stated that MPs at the Commission were excused from disciplinary processes as these processes went through Parliament ultimately anyway.
In terms of the Magistrate’s Act, a presiding officer had to be a sitting magistrate. There was a challenge faced in finding persons to preside who could be released from their office. The Magistrate’s Commission even considered looking to a pool of retired magistrates.
Adv Moosa noted the discomfort caused by the perception of the Magistrate’s Commission as “soft” with postponements. However, when it came to presiding officers and evidence leaders, the Commission could not prescribe to the presiding officer what to do as it had to be an independent tribunal respecting the principles of national justice and audi alteram partem. However, he conceded that thought had to be given to stemming the number of postponements granted.
He suggested the collaborative drafting of a letter to the Minister of Justice and Correctional Services in terms of the conduct of the SAPS in the Hinxa case.
In respect of the capacity of the Commission, it was highly constrained. The Ethics Committee was at one stage properly staffed but it now only had 2 permanent magistrates and a third assisting. The challenge faced was that this body is essentially understaffed. If one magistrate is dealing with a specific case, its capacity became severely constrained.
Adv Moosa acknowledged that the Nzimande matter had been extremely difficult. On a regular basis this matter was reported in print media, including the sex and bribes scandal. The modus was not as simple as women being asked for sex and men being asked for money. In all cases money was demanded from acting appointees and money was disbursed on a monthly basis to the Regional Court President. This investigation was extremely difficult to execute and witnesses feared intimidation. The high-profile nature required the inclusion of the NDPP’s office. The current committee seemed much more receptive to these issues than previously, when the Magistrate’s Commission was accused of being on a witch hunt to try and remove specific people. When it came to the day-to-day investigation of matters, he did not become involved to protect his independence. The investigation had come to the point where the conduct of the attorneys paying Mr Nzimande would be reported. The Ethics Committee would not allow one party to get away with corruption.
Adv Moosa recognised the comments made in respect of Mr Nair and the Bosasa matter. The moment the story broke in the media, the Ethics Committee immediately requested information from the right channels. Mr Nair is Chair of the Magistrate’s Commission’s Legislative Committee, but stepped away from the Commission so it could investigate. Mr Nair was also chair of the Chief Magistrates Forum so the Magistrate’s Commission looked outside of the Commission for investigating officers, settling on Ms Pretorius J (Ret) and the Regional Judge President, North West Magistrates Court. He committed to keeping the Committee in the loop.
Adv Moosa also requested an opportunity to, in future, present to the Committee to set out the particular challenges and how to synergise the relationship between the Commission and the Portfolio Committee.
Concerning the payment of salary of suspended people, the state had to respect the audi alteram partem rule and could not withdraw salaries, as much as it wanted to respect fiscal constraints. He did add though that the cases should be dealt with as quickly as possible though.
Adv Meyer continued: with regards to vetting, the Commission had recently taken the resolution that vetting would take place. On a given day, 300 magistrates posts were advertised and the Commission receives 4000 applications a year. The Magistrate’s Commission secretariat did not have the staff to perform all these duties, but would be implementing vetting.
Adv Meyer clarified that the people appointed as presiding officers were seasoned and experienced magistrates. They did their best to provide justice. Many postponements were vigorously opposed by the Commission but the presiding officer had to have ultimate authority. If tribunals were seen to be flawed or thrown out by higher courts, they would be invalidated. The Commission did its level best to conclude matters as quickly as possible. There were, nevertheless, issues of a lack of availability, and dates had to be set long in advance.
In terms of Mr Nzimande, one of the complainants appointed on his request in an acting position was an attorney with criminal charges against her. When she was not appointed on contract she filed a complaint with the Commission. Some of the acting magistrates had been permanently appointed. The Commission did not want to prejudice the case against Mr Nzimande. The police was busy with investigations and the Commission expected arrests to be made shortly. The matter had been reported to the police force, and high profile SAPS members were involved in the investigation.
Adv Meyer noted that, in respect of assistance to the complainant in the Hinxa matter, this had been handled. However, Mr Hinxa was highly connected in Bloemfontein. In 2016, the complainant approached the Minister of Justice as a last resort. On the basis of her report, the Magistrate’s Commission wrote to the former NDPP, Mr S Abrahams, to reconsider the DPP’s decision not to prosecute. The former NDPP decided to confirm the decision of the DPP and not prosecute. Despite that, the Commission continued its investigation. It experienced problems with SAPS members threatening the complainant which had been noted at the disciplinary inquiry. Mr Hinxa plead not guilty and placed everything in dispute. Before the issue was reported to the Minister he was aware. As soon as the Commission reacted he produced a withdrawal statement from the complainant. The Ethics Commission conducted a preliminary investigation and found he should be charged with misconduct (here Adv Meyer noted that the issue of rape was a criminal matter outside the Magistrate’s Commission scope). Mr Hinxa took the issue to the High Court claiming the withdrawal of matter. Halfway through the current disciplinary inquiry, he raised an alibi claiming he was in the Eastern Cape at the time of the crime. This had to be investigated, which takes time. Most of the evidence had been taken on record. It was now up to Mr Hinxa and his legal team to plead his defence. The complainant was 43 years of age, a very sober member of the local community in Botshabelo, but she could not speak English which slowed proceedings. Adv Meyer emphasised that three of the possible witnesses had passed away since the case opened, which was suspicious. The Commission has tried to investigate this.
Ms Freeman was appointed a magistrate a long time ago, and when she applied to be a senior magistrate, she did not disclose her directorship. Only when the Magistrate’s Commission charged her with this issue in the preliminary investigation, did it become obvious she had been convicted. She had been found guilty and the Commission was waiting for the sanction to be imposed. If the recommendation was removal from office, the Commission would transmit this decision to the Minister and Parliament would make the determination.
In the Van Schalkwyk matter, Adv Meyer had been involved from its inception. If an attorney passes away, the presiding officer had to take it into account. This was, however, the third time that she had fired her attorney. Ms Van Schalkwyk took the Commission to the High Court to question the very same regulations that allowed her to be appointed in the first place. The Constitutional Court ruled in the Van Rooyen (2003) matter that the regulations passed constitutional muster. It took almost 5 years before the Commission could commence with the disciplinary inquiry. She was representing herself and was still cross-examining the first witness in the second week of the inquiry, which was only tabled for another week in the current session. 9 witnesses were ready to testify, including some magistrates.
When a magistrate was charged with a criminal matter, the Commission had an agreement with the DPPs/NDPPs to address the issue so it could continue with its disciplinary inquiry.
Adv Meyer complained of the lack of staff at the Commission. Since 2000 he had been dealing with complaints against magistrates countrywide. Many were frivolous and are quickly dismissed. Cluster heads deal with many matters. Only serious matters were dealt with by the Magistrate’s Commission. At this point, the Commission had 5 magistrates appointed and seconded 2 on a 3-year basis. They all left after applying to better posts or resigning. Most magistrates did not want to do this kind of work. It takes a lot of time and courage. The posts were advertised at the magistrate level, not senior magistrate, which was another problem. All in all, the Commission is understaffed. The one magistrate is seconded on a temporary basis and the other is nearing retirement, so the Commission would need assistance in this matter.
The Chairperson thanked the presenters and accepted Adv Moosa’s request for another meeting with the Committee.
Mr Dyantyi agreed that costs to the state were a serious matter.
Ms Maseko-Jele requested a report on progress at their next meeting. Was it procedure that only the Ethics Committee came? Given the issue of remuneration did not fall under its scope, maybe there was a need for representatives of other sub-committees.
The meeting was adjourned.
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