The Magistrate’s Commission 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 Commission asked the Committee to support it by making robust decisions that would help with removing the magistrates who are unfit for office.
Members expressed that the case details were depressing. It was concerning that these cases were committed by Officials who were entrusted by the State. They asked if the Commission could establish a monitoring mechanism for magistrates, such as a complaints desk and if there were any measures in place to curb the delaying tactics that were being used by the accused magistrates.
They further asked the Commission to submit accurate data to the Committee about the number of ongoing cases and if the consequences for the guilty magistrates was limited to their dismissal or further escalated to sentencing.
Opening Remarks by Chairperson
The Chairperson asked the Committee Members and the guests to introduce themselves. She then introduced the agenda of the meeting.
Introduction by the Magistrates Commission (MC)
Adv Cassim Ismail Moosa, Chairperson: Ethics Committee, MC, welcomed the invite to brief the Committee on some of the ongoing legal cases against a number of magistrates.
Adv Moosa then outlined the management and operational structures, the objects, role and the mandate of the Commission.
The Ethics Committee (EC), comprising of 9 members, met on a monthly basis due to the amount of work it had. For cases that did not have substance and basis, the committee members would deliberate and apply their minds. When evidence is available, the EC would authorise an investigation, in terms of regulation 26(1) for judicial offices. A magistrate would be appointed to determine whether there were any grounds of misconduct. The findings would then be submitted to the EC and it would decide if there is sufficient merit to warrant a charge of misconduct against the magistrate in question. If so, a charge sheet would then be prepared and served to the accused, after being endorsed by the Commission. The accused would then be given a chance to respond to the allegations. The Members of Parliament who are part of the Commission would not participate in the misconduct inquiries because they may end up being conflicted.
In addition to the EC, there was a Grievance and service conditions committee as well as a Legislation committee. These and other subcommittees each had a Chairperson and these Chairpersons combined to form an executive committee (ExCom) of the Commission. This ExCom would deal with urgent matters.
Adv Johannes Meijer, Member, MC, said that the Commission would advise the accused magistrates, who challenged the charges against them, to consider all the legal remedies that are at their disposal. Some complaints would be deemed frivolous and the serious ones would be escalated to the EC. The Presiding Officer (PO) at the disciplinary inquiries would always be a Magistrate. If the accused were found guilty, the PO would then either impose sanctions on the individual, recommend their provisional suspension from office without remuneration or the removal of the accused from office, for the duration of the inquiry. The EC would then review the recommendation and also submit its own recommendation to the Minister, who would then concede to the parliamentary committees’ guidance and resolutions on the matters. Parliament had endorsed the provisional suspension, including the withholding of remuneration, of Mr JF van Schalkwyk, Mr MD Hinxa, Mr ES Nzimande and Ms LB Freeman. The Commission would update the committees after every quarter.
Ms Z Ncitha (ANC; Eastern Cape) asked why the remuneration of suspended Magistrates were being withheld. Is this in line with the labour law?
Mr T Dodovu (ANC; North West) asked if the cases that were to be presented were the only ones that the Commission was dealing with.
Mr Dodovu further asked the Commission to consistently distinguish the National Assembly (NA) and the National Council of Provinces (NCOP) when mentioning Parliament in their progress reports. This would make it easier for the Committee to track when exactly the report submission dates were. He specifically indicated that the report about Mr D Hinxa did not make the distinction.
Mr K Motsamai (EFF) asked why the other Commission members were not in attendance.
Adv Moosa explained that the ethics division consisted of three magistrates. Adv Meijer had, for over 20 years, been responsible for drafting the reports to Ministers, appearing before both Houses of Parliament and briefing the committees on arising matters. It was therefore never a necessity for the entire Commission to be present at the meetings. He would represent the EC and Adv Meijer, as the most experienced member of the Commission, would also attend. Another reason was to avoid drawing too much public attention towards the cases.
Adv Moosa asked to address Mr Dodovu’s comment about distinguishing the Houses of Parliament when he gets to brief the Committee about Mr Hinxa’s case.
Adv Moosa explained that the previous progress reports on the four cases had also been presented to the Committee in the 5th Parliament. However, the briefings on the latest progress reports were delayed because of the elections. In addition to these cases, the ethics division was also dealing with about 100 more cases. These were at different phases. The focus was on these particular four magistrates because they were the most serious and the accused had already been provisionally suspended from office. Section 13(3)(f) of the Magistrates Act (No. 90 of 1993) obligated the Commission to table progress reports to both Houses of Parliament after every quarter.
The Chairperson requested the Commission to submit accurate data, to the Committee, about the number of ongoing cases, rather than just estimating.
Adv Moosa committed to submitting, to the Committee, spreadsheets with the latest statistics on the number of cases reported, the ones that had been investigated and their outcomes. This would give the Committee an indication of the magnitude and the veracity of the work done by the ethics division.
Adv Meijer explained that magistrates are public office bearers and therefore labour laws do not apply to them. This consequence was tested in the Constitutional Court in 2003. The Concourt found that the withholding of remuneration was not unconstitutional. The Magistrates Act was subsequently amended to allow for the withholding when a magistrate is provisionally suspended. Another motivation for it was the deliberate delays that would be imposed by the accused in finalising disciplinary inquiries. Also, the inquiries would proceed even if there were criminal charges against the magistrate in question because these would be considered through another, independent process.
Briefing by the Magistrates Commission
Adv Moosa stated that the Commission must, in terms of section 13(3)(f) of the Magistrates Act (No. 90 of 1993), submit progress reports on inquiries against magistrates who have been provisionally suspended from office, to Parliament, after every three months. Section 13(3)(e) of the Act provided that the provisional suspension of a magistrate, in terms of paragraph (a), must lapse after 60 days from the date of suspension; unless the Commission, within that period, commences its inquiry into the allegation in question by causing a written notice containing the allegations concerned to be served on the magistrate.
Provisional suspension from office: Mr ES Nzimande, Regional Court President, KZN
Adv Moosa indicated that Mr Nzimande was the Regional Court President of the Regional Division, Kwazulu-Natal. He was 59 years of age. Mr Nzimande had served the Lower Courts Judiciary as a Regional Magistrate since 01 July 2000 and was appointed the Regional Court President, Kwazulu-Natal on 01 June 2011.
The Commission, during a preliminary investigation conducted in terms of regulation 26(1) of the Regulations for Judicial Officers in the Lower Courts (1994), obtained reliable evidence indicating that the allegations against Mr Nzimande were of a serious nature; making it inappropriate for him to perform his duties as a judicial officer and Regional Court President. Having considered the existing evidence against him, the Commission, at its meeting held on 31 August 2018, resolved to charge Mr Nzimande with misconduct. A charge sheet, dated 31 August 2018 and containing 50 counts of misconduct, was personally served to him on 04 September 2018.
In summary, the misconduct charges that were preferred against Mr Nzimande, inter alia, related to acts of impropriety in that:
- in his capacity (as Head of the Office for the KZN Regional Division during the period 2012 to 2016) he was responsible for the recommending the Acting Regional Magistrates to the Minister for appointment, in terms of section 9(3) of the Magistrates' Courts Act (No 32 of 1944). Due to the suspension, the Minister had since delegated the appointment this responsibility to the Deputy Minister.
- on various occasions during the period 2012 to 2016 he approached the Minister, recommending the acting appointment of a number of attorneys for them to act in the Regional Courts within his Regional Division;
- in turn, he received numerous payments form these attorneys, which were deposited into his bank accounts, either prior to or after their respective approved acting appointments;
- during the period 2012 to 2015, he unlawfully and wrongfully victimised and/or sexually harassed a female acting Regional Magistrate for the KZN Regional Division by making subtle sexual advances to her and/or calling her into his office, asking her to sit on his lap whilst talking to her and/or indicating that she was indebted to him for her job and that he was personally responsible for her receiving the position as acting Regional Magistrate. He is also said to have attempted to coerce and pressure her into engaging in a sexual relationship with him and consistently discussed his personal circumstances such as his sexual partners and the activities which he engaged them in. He would consistently tell her of other magistrates who would engage in sexual favours in return for employment perks and also sent her photos of his genitalia via his cellular phone, which conduct violated her rights to integrity of her body and personality.
On 25 October 2018, Mr Nzimande responded to the allegations of misconduct against him, as fully set out in the charge sheet, tendering a plea of not being guilty on all 50 charges preferred against him.
Having obtained approval form the respective Heads of Courts to release them for this purpose, at its meeting held on 22 February 2019, the Commission approved the appointment of three Regional Magistrates (PO's) to preside, and two Persons to Lead the Evidence (PLE's), at Mr Nzimande's misconduct inquiry. The previous Chairperson of the Commission had an agreement with the former National Director of Public Prosecutions (NDPP) to release a Senior Advocate from his office to assist the Commission in leading the evidence at the inquiry. The newly appointed NDPP was advised accordingly and was requested to follow up on this agreement. A date for the hearing to commence would be set after consultation with all the parties concerned, once her response has been received.
The Minister, on the Commission’s recommendation, provisionally suspended Mr Nzimande from office on 05 October 2018. The NA confirmed the Minister's decision on 05 October 2018. The NCOP passed a similar resolution on 19 March 2019.
Provisional suspension from office: Chief Magistrate JF van Schalkwyk, Kempton Park
Adv Moosa indicated that the Commission, at its meeting held on 11 May 2013, resolved to recommend to the Minister that she be provisionally suspended pending an investigation into her fitness to hold office as contemplated in terms of the Act. On the advice of the Commission, the Minister provisionally suspended Ms Van Schalkwyk from office and tabled a report in Parliament in terms of section 13(3)(b) of the Act. On 12 November 2013, Parliament confirmed Ms Van Schalkwyk's provisionally suspension from office.
Having conducted a preliminary investigation into numerous complaints of alleged misconduct, the Commission charged Ms Van Schalkwyk with 18 counts of misconduct. Ms Van Schalkwyk’s then attorney acknowledged receipt of the charge sheet on 01 August 2013 on her behalf. On 18 September 2013, the Commission appointed a PO and a PLE at the hearing. Ms Van Schalkwyk was informed in writing accordingly. However, on 7 October 2013, Messrs C Coetzee attorneys, acting on Ms Van Schalkwyk’s behalf, filed a written objection with the Commission against the appointment of the PLE to lead the evidence at the misconduct hearing. In its response, the Commission advised Mr Coetzee that the PLE was duly appointed in terms of the applicable legislation and that his PLE duties and functions were different to those of the PO. He was further advised to raise any further objections to the correct forum - which would be at the inquiry before the PO.
Adv Moosa said that Ms Van Schalkwyk, through her attorney, thereafter requested numerous further particulars to be provided to enable her to furnish the Commission with a written explanation regarding the misconduct charges preferred against her. Her attorney's attention was drawn to the fact that the Regulations for Judicial Officers in the Lower Courts do not make provision for the furnishing of further particulars. The PLE's office was in constant interaction with the defence vis-á-vis the furnishing of further particulars and legal argument surrounding that, together with matters pertinent to discovery. The PLE however deemed it appropriate to provide the defence with copies of all witness statements and documentation to be tendered during the misconduct inquiry.
The defence raised numerous points in limine and applications which were argued before the PO on 6 October 2014. Ms Van Schalkwyk's application was successful in respect of one count. The PO postponed the inquiry to 16 January 2015 for hearing on which date the defence again requested a postponement. Although this was vigorously opposed by the PLE on behalf of the Commission, the matter was postponed to 23- 25 February 2015 for hearing. The hearing did however not proceed on these days. A further postponement was requested by the defence since Ms Van Schalkwyk's mother had passed on. The inquiry was postponed to 20 and 21 April 2015. The defence on 15 April 2015 advised the PLE that they were once again forced to apply for a postponement of the matter on 20 April 2015.
Adv Moosa stated that Ms Van Schalkwyk's legal representative indicated that he, on 13 April 2015, received confirmation from the Public Service Association (PSA) that they would authorise for senior counsel to be briefed. Advocate J Cilliers (SC) was briefed but not able to proceed with the hearing on 20 April 2015, even if he was to be placed in a position to prepare. The application for a further postponement was opposed. The PO requested both parties to file Heads of Argument in respect of the application for another postponement. The application was refused. Ms Van Schalkwyk's attorney thereafter recused himself which the person leading the evidence opposed.
He then indicated that Ms Van Schalkwyk asked for a postponement to obtain legal representation which was also opposed. The PO however granted the postponement and remanded the inquiry to 03 June 2015, on which date Adv Cilliers (SC), along with instructing attorney P Rudman, were placed on record. Counsel indicated that the defence intends to challenge the validity of the Regulations for Judicial Officers in the Lower Courts but that he had to take final instructions thereon. The inquiry was postponed to 30 October 2015 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 State Attorney was instructed to oppose the application.
On 14 August 2015, the applicants, Ms Van Schalkwyk and three others, obtained a High Court order compelling the Minister and the Secretary of the Commission, the first and third respondents in the matter, to provide the applicants with any information relating to the promulgation of the Regulations for Judicial Officers in the Lower Courts and the Code of Conduct for Magistrates; including copies of any recommendations by the Commission to the Minister.
On 18 November 2015, the Law Enforcement of the Department of Justice (DoJ) and Constitutional Development confirmed having complied with the Court order in that the applicants were served with the documents which the Department had in its possession.
On 26 September 2016, the Office of the State Attorney, in Pretoria, advised the Commission that Heads of Arguments were filed on 11 July 2016. The matter was set down on the Opposed Motion Roll at the Gauteng Division of the High Court, for a hearing on 30 January 2017. During argument a new issue arose, necessitating brief supplementary submissions to the Court. The matter was therefore postponed until 15 March 2017. The matter was heard on 15 March 2017 and judgment was reserved. On 01 August 2017, the High Court delivered judgment, dismissing the applicants’ application with costs. The applicants filed a Notice of Application for leave to appeal to either a full bench of the High Court or the Supreme Court of Appeal (SCA) on 29 August 2017. Having heard both parties on 08 November 2017, the High Court on 10 November 2017 dismissed the applicants’ application with costs. The applicants thereafter petitioned to the SCA; they lodged their application on 13 December 2017. On 12 March 2018, the SCA dismissed the application with costs.
The Commission soon thereafter, on 15 March 2018, instructed the PLE to set the misconduct inquiry down for hearing. The inquiry was to continue on Saturday, 14 April 2018, but was on the request of Ms Van Schalkwyk's attorney postponed to 03-06 July and 09-11 July 2018 for hearing. On 05 June 2018 Ms Van Schalkwyk's attorney, who acted on her behalf in her High Court applications, advised the PLE that his mandate was terminated. The PLE requested Ms Van Schalkwyk to provide it with the particulars of her newly appointed attorney. The parties during 03-06 July hearing exchanged the relevant evidential documentation and compiled the bundles of evidence to be used at the inquiry. The inquiry did not proceed on 09 July and was postponed to 27 September 2018. Ms Van Schalkwyk's newly appointed attorney was not available on that day; the matter was then, by mutual agreement between the parties, postponed to 01-03 October 2018 for hearing. The defence again raised certain points in limine upon which the PO made a ruling. Evidence was eventually presented on 02 and 03 October 2018. The matter was postponed to 10-12 December 2018 for further hearing but the Commission's first witness continued to testify during this period. The inquiry was again postponed to 21-25 January 2019 for further hearing.
On 19 January 2019, the PLE advised the Ethics Division that Ms Van Schalkwyk's attorney had a fatal motorcycle accident wherein he and his wife were killed. The inquiry did however proceed on Monday, 21 January 2019. Ms van Schalkwyk elected to proceed in person. The Commission's first witness concluded her evidence on 22 January 2019 and Ms Van Schalkwyk then requested the matter to be postponed on grounds that she needed to instruct an attorney and brief counsel to represent her in future. The inquiry was postponed to 01-05 April 2019 for cross-examination of the first witness and further hearing of evidence. She advised the Commission on 12 March 2019 that she instructed an attorney and that he briefed counsel. She required a copy of the transcription of the proceedings at that stage for her counsel to prepare himself.
Cross-examination of the Commission's first witness commenced on 01 to 03 April 2019 where after the inquiry was postponed to 15 to 19 July 2019 for further cross-examination.
Counsel for Ms Van Schalkwyk continued cross-examining the witness on 15 July 2019. Ms Van Schalkwyk however terminated the services of her legal team shortly thereafter; she placed on record that she would, again, be conducting her own case. She continued with her cross-examination of the first witness. Although other witnesses for the Commission were ready to testify at the inquiry, the matter had to be further postponed on 19 July 2019 because she did not conclude her cross-examination of the witness during that week. The inquiry was postponed to 30 September to run to 04 October 2019 for further cross-examination; dates were also reserved for 13 and 24 January 2020.
Adv Moosa indicated that Ms Van Schalkwyk was provisionally suspended from office and was not receiving any remuneration. He added that it would have been unjust for her to be remunerated while suspended.
Provisional suspension from office: Senior Magistrate LB Freeman, Mossel Bay
Adv Moosa said that Ms Freeman was a Senior Magistrate and the Judicial Head of Office at the Mossel Bay District Court. She was 42 years of age and had been appointed to the lower court bench on 24 October 2006. She was then appointed to be a Senior Magistrate at Mossel Bay on 01 May 2017.
The Ethics Division of the Magistrates Commission conducted a preliminary investigation into a number of complaints against Ms Freeman. The Commission considered the preliminary investigation report submitted to it and subsequently resolved to charge Ms Freeman with misconduct. A charge sheet dated 17 November 2017, containing 24 counts of misconduct, was personally served on Ms Freeman on 23 November 2017. The misconduct charges preferred against Ms Freeman relate to various acts of dishonesty during the period 2015 to 2017. In summary:
- In 21 of the misconduct charges it was alleged that Ms Freeman made a false or incorrect statement regarding transport claims where the kilometres claimed were more than the existing distances between the destinations;
- Ms Freeman indicated that she had performed an inspection in loco whilst no such inspection in loco took place. She claimed for the kilometres travelled;
c) Ms Freeman indicated in one of her transport claims that she used an Audi A4 vehicle model whilst in fact she had used an Uno, knowing very well that the kilometre tariff for the Audi was much more than that of the Uno;
d) In her application for Appointment as Senior Magistrate, on the question to list all directorships and other interests in business held during the past 10 years, she falsely and unlawfully declared "N/A" on the application form; she, in fact, was registered by the Commissioner of Companies and Intellectual Property as an active director and founding member of the company called Southern Cape Fish Co-operative Limited, and
e) In the same application, on the question about whether she had ever been convicted of any criminal offence, stated "No" whilst in fact she had been convicted of theft and sentenced in the Potchefstroom Magistrates Court, on 06 May 1993.
Having duly been served with a Notice of Hearing, the misconduct inquiry/disciplinary hearing against Ms Freeman commenced on 21 February 2018 at Mossel Bay. Ms Freeman was unrepresented at her first appearance at the inquiry. She requested the PO to postpone the inquiry to 22 March 2018 in order for her to obtain legal representation. She indicated that she was under the impression that the hearing would be held at the office of the Commission in Pretoria, which caused her to consult with an attorney in Johannesburg. She later advised that she did not utilise the attorney in Johannesburg when she learned that the hearing was to be held in Mossel Bay.
Adv Moosa indicated that on 22 March 2018, Ms Freeman was still unrepresented and that she indicated that the attorney she had approached was not available on that day. She was then given an opportunity to approach another attorney, apparently from Oudtshoorn, to confirm his availability on a future date. On confirming a date for the availability of the attorney from Oudtshoorn, the hearing was postponed to 02 August 2018. On 02 August 2018, Ms Freeman advised the inquiry that she terminated this attorney but added that she had since instructed another attorney, who was present at the inquiry. This new attorney confirmed having received instructions to act on Ms Freeman's behalf at the inquiry.
At the request of Ms Freeman, the inquiry was once again postponed to 12 to 14 September 2018 as she, without giving prior notice to the PO at the inquiry, had approached the High Court for a ruling that certain statements be made available to the defence at that stage. This caused a further delay for the inquiry to commence hearing evidence. The High Court ruled that the statements must be made available and this ruling was complied with. Since the application by Ms Freeman’s matter was not yet finalised at that stage, it caused another postponement of the inquiry to 21 to 23 November 2018. The PO, who was to act in the High Court, withdrew. At the time, Ms Freeman had not tendered a plea to the charges preferred against her. The Commission therefore had to identify and appoint another PO for the inquiry. The newly appointed PO presided at the inquiry on 21 November 2018. He instructed the PLE and Ms Freeman's legal team to, prior to the continuation of the inquiry on its next date, sort out any outstanding issues in dispute in order to expedite the conclusion of this matter. The inquiry was then postponed to 28 to 31 January 2019. A "pre-trial" meeting took place which resulted in Ms Freeman making certain formal admissions.
On 28 January 2019, Ms Freeman was represented by her attorney and counsel. She pleaded not guilty to all the charges. The majority of the Commission's witnesses testified at the inquiry during this week. On 31 January 2019, the PO postponed the proceedings until 08 to 11 April 2019 for the presenting of further evidence on behalf of the Commission. All the evidence was led during the April session of the inquiry. On 10 April 2019, the PO postponed the inquiry to 24 and 25 July 2019 for judgment and ordered both parties to file their respective Heads of Argument on or by 28 June and 09 July 2019, respectively. Although the PLE timeously presented his Heads of Arguments, Ms Freeman's counsel failed to do so.
On 24 July 2019, the PO delivered his judgment and found Ms Freeman guilty on all 29 charges of misconduct that the Commission preferred against her. Both parties were given the opportunity to address PO on the imposition of a sanction. The inquiry was postponed to 12 September 2019 for the PO to impose a sanction. The Commission thereafter reported the matter to the South African Police Service (SAPS) for investigation and was in contact with the Prosecuting Authority about it.
Adv Moosa also indicated that the NCOP and the NA confirmed the provisional suspension of Ms Freeman on 05 September 2018 and 25 October 2018, respectively. Although she was suspended, she was still receiving remuneration.
Provisional suspension from office: Chief Magistrate MD Hinxa, Bloemfontein
Adv Moosa said that the complainant in the matter was a 42-year-old woman from Botshabelo. She lodged a complaint on 29 July 2016 to the Minister, alleging that she was raped by Mr Hinxa in his flat in Bloemfontein. Her complaint was submitted to the Department and it was, on 02 November 2016, referred to the Commission for attention. The complainant had reported the matter on several occasions to different police stations. They all refused to open a case; hence her letter to the Minister as a last resort.
On 14 January 2017, before the matter could serve before the Ethics Committee, Mr Hinxa showed the then Secretary of the Commission a report from the Free State Director of Public Prosecutions (DPP) following a consultation the latter had with the complainant, indicating that he would not be prosecuted. Mr Hinxa furnished the then Secretary with a sworn statement, allegedly made by the complainant, indicating that she was paid R100 000 by Maroka Attorneys to implicate him. The complainant, however, persisted that she was raped by Mr Hinxa and denied having ever made such a statement.
The Commission then resolved to conduct a preliminary investigation into the allegations of rape against Mr Hinxa. Based on the evidence gathered during the preliminary investigation, the Commission charged Mr Hinxa with two counts of misconduct. The basis was that he contravened regulation 25(c) of the Regulations for Judicial Officers in the Lower Courts, read with the Code of Conduct for Magistrates; he also contravened the Bill of Rights as contained in the Constitution, in that on two different occasions during 2010 and 2011, he unlawfully and wrongfully compelled the complainant without her consent to commit an act of sexual intercourse with her. This wrongfully infringed on her interest in her bodily integrity and constitutional right to have her inherent dignity respected. The charge sheet, dated 24 November 2017, was electronically sent to Mr Hinxa's attorney.
On 04 December 2017, Mr Hinxa, through his attorney, filed a Notice of Motion with the Gauteng Division of the High Court for an order, inter alia, to stay the Minister's decision to provisionally suspend him from office, pending review proceedings which he intended to institute, and for an order interdicting and restraining the Commission from proceeding with the disciplinary inquiry against him on the charges, as set out in the charge sheet dated 24 November 2017. This urgent application was struck from the roll with costs.
The Minister, on advice of the Commission, provisionally suspended Mr Hinxa from office with effect from 29 November 2017 and this decision was confirmed by Parliament. Mr Hinxa thereafter instituted review proceedings in the Gauteng Division of the High Court on 23 January 2018. He applied for an order to review and set aside the Minister's decision to provisionally suspend him from office - reviewing and setting aside the Commission's decision to institute a misconduct inquiry against him and declaring the disciplinary inquiry on the misconduct charges against him to be invalid and unlawful. This application was opposed. Mr Hinxa terminated the services of his attorney and failed to instruct another attorney. The State Attorney was requested to bring an application to dismiss Mr Hinxa's application because he took no further action and also to recover the State's costs.
In the absence of a court order barring the Commission to proceed with the disciplinary hearing/misconduct inquiry against Mr Hinxa, the Commission, on 21 May 2018, duly appointed a Regional Magistrate as the PO at the inquiry and two Regional Magistrates as PLEs on behalf of the Commission. Having duly notified Mr Hinxa via his attorney, of the date, time and venue, the inquiry commenced on 30 October 2018 and was set down until 02 November 2018. Mr Hinxa raised various matters which had to be argued upon but no evidence was led. On 01 November 2018, he requested a postponement for him to attend to the review proceedings he instituted in the High Court and to instruct an attorney to act at the inquiry on his behalf. The PO postponed the inquiry to 14-18 January 2019 for Mr Hinxa to instruct an attorney. She (PO) ordered that the inquiry would continue either with or without his attorney and that the matter will proceed for hearing. The dates 18 -21 February 2019 were also set, should the matter not be concluded within that period.
The inquiry proceeded on 14 January 2019. Mr Hinxa's instructing attorney and counsel were present; four witnesses testified on behalf of the Commission during this period. On 17 January 2019 was again postponed upon the request of Mr Hinxa's legal team for further consultation with possible witnesses and to prepare to cross-examine the 4th witness. The inquiry only continued on 18 February 2019. Three further witnesses testified where after the matter was postponed to 27, 29 and 30 May 2019 for further hearing. Further evidence was presented at the inquiry during this period and it was further postponed to 15-19 July 2019. Except for cross-examination of witnesses by Mr Hinxa's counsel, the PLE's called the complainant to commence with her testimony at the inquiry. Her evidence was led and she was still under cross-examination. The inquiry was postponed to continue on 30 September to 04 October 2019.
Adv Moosa also indicated that the NCOP and the NA confirmed the provisional suspension of Mr Hinxa. However, he was still receiving remuneration.
The Chairperson thanked Adv Moosa for the in-depth briefing and asked the Members to proceed with their comments and questions.
Mr S Zandamela (EFF, Mpumalanga) pointed out that in dealing with the disciplinary hearing and misconduct inquiries of public office bearers, on criminal charges, the Commission was not bound to adhere to the Labour Relations Act in the way it was handling the matters. He said this in light of how long the cases had been delayed. When will these matters be finalised?
Mr Motsamai stated that the magistrates in question were criminals who seemed to have power against the justice system. He asked if there was a way to speedily finalise all these cases.
Ms M Mmola (ANC; Mpumalanga) asked how many of the accused magistrates were being remunerated while suspended from office. If those whose remuneration was being withheld win their cases, are all their missed salaries going to be paid in full?
Mr E Mthethwa (ANC; KZN) asked if magistrates were allowed to appeal their case through the Labour Courts. Should the defendants end up losing their cases, could they be ordered to refund the State for the expenses it occurred for the hearings?
Ms Ncitha expressed that it was concerning that these cases were committed by Officials who were entrusted by the State.
Mr Dodovu commended the Commission for the comprehensive presentation. This was his first interaction with the Commission and he appreciated getting to know about its role, mandate and how it interfaces with Parliament.
Mr Dodovu echoed Ms Ncitha’s words, saying that it was shocking for Judicial Officers to be caught up in such criminal allegations. He hoped that serious consequences would be exerted if they were found guilty. He further asked how many other officials were not caught in their misconduct. The Commission should work hard to resolve all 100 cases in order to restore the dignity of the country’s justice system.
Mr A Gxoyiya (ANC; Northern Cape) thanked the Commission for sharing the status reports. The details were depressing. He asked if the Commission could establish a monitoring mechanism for magistrates, such as a complaints desk. Complainants should not have to take every matter to the SAPS because some accused magistrates may have relationships with some police officers who would help absolve them.
Mr Gxoyiya asked if there were health awareness programmes for employees. He diagnosed Ms van Schalkwyk’s gambling addiction as a psychological problem.
Mr Gxoyiya asked if there were any measures in place to curb the delaying tactics that were being used by the accused magistrates. In the case of clear, intentional delays caused by the defendants terminating their attorneys, the proceedings should continue with or without legal representation for the defendants. These delays should be quantified because they come at a cost to the DoJ. The DoJ was also understaffed with magistrates because a lot of them were facing misconduct charges.
Mr Gxoyiya asked if the consequences for the guilty magistrates were limited to their dismissal or further escalated to sentencing.
The Chairperson inquired about remuneration status of suspended magistrates. At what point does the Commission consider reviewing it?
Adv Moosa acknowledged the request and assured the Members about the robustness of the Ethics Committee and its capability to finalise all the pending cases. He added that ethical conduct was a priority and that the matters would be pursued vigorously. If the integrity of the Judiciary is brought into disrepute at any point, then the foundation of society stands to be shaken. He pleaded with the Members to carefully apply their minds in assisting the Commission; to support it by making robust decisions that would help with removing the magistrates who are unfit for office.
Adv Moosa indicated that the Commission would typically seek to appeal for pension funds of the guilty individuals to be nullified; especially if there were any fiscal implications suffered from their misconduct. Fraudulent activities were reported to the SAPS and criminal charges would be pressed against the accused.
Adv Moosa indicated that the regulations did not include provisions for the Commission to ensure that these matters were resolved quickly. The tribunal constituted to handle these cases was independent; if the Commission interfered in the process, it would be deemed to be traversing the judicial independence of the PO. However, the Commission was planning to submit a circular to the POs and PLEs to indicate to them that the clarion call from both houses of Parliament was that inquiry delays should not be tolerated.
Cognisant of time, the Chairperson interjected Adv Moosa’s response to the Members’ question. She asked him to submit the outstanding responses to the Committee in writing. She added that the Committee was looking forward to the next meeting with the Commission.
The meeting was adjourned.
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