Mutual Legal Assistance on Criminal Matters Treaty with Mexican States; Provisional Suspension of Magistrate

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Justice and Correctional Services

27 May 2020
Chairperson: Ms S Shaikh (ANC Limpopo); Mr G Magwanishe (ANC)
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Meeting Summary

Video: PC on Justice and Correctional Services & SC on Security & Justice 27 May 2020
Audio: Mutual Legal Assistance on Criminal Matters Treaty with Mexican States; Provisional Suspension of Magistrate

The Portfolio Committee on Justice and Correctional Services and the Select Committee on Justice and Security met in a virtual format to receive a presentation from the Department of Justice and Constitutional Development, supported by the Deputy Minister of Justice, on two treaties that were being recommended to Parliament for ratification. The treaties were the Extradition Treaty and the Treaty on Mutual Legal Assistance in Criminal Matters between the Republic of South Africa and the United Mexican States. The Deputy Minister pointed out that, whilst South Africa had an Extradition Act, such a treaty with individual countries made the process more efficient as the Minister of Justice could manage the process which meant that an extradition could be expedited. The Department informed Members that the Mutual Legal Assistance Treaty with Mexico would be particularly helpful in managing criminal investigations, particularly in relation to the drug trafficking from South American countries. The Department presented the key articles in the treaties.

Questions by the Members focused largely on the reasons for the delay since 2014 in bringing the treaties to Parliament.

Co-Chairperson Shaikh informed the Deputy Minister and the Department that the decision whether to recommend ratification would be taken by the individual Committees later that week.

The Magistrates Commission presented a report on a magistrate who was charged with unfitting behaviour and requested that the Committees recommend to the Houses of Parliament that the magistrate be suspended whilst an investigation took place, as per the requirements of the Magistrates Act of 1993. The magistrate stood accused of having communicated on 49 occasions with an accused who was to come before his court.

Members asked why the salary of the magistrate was not being withheld. Why had the Ethics Division originally decided not to prosecute the magistrate?  Had the Commission opened a criminal case against the person? Did the Magistrates Commission not think it was high time that magistrates were also subjected to the same enquiry as the Zondo Commission as there were so many corruption cases coming from the magistrates courts? When a person was suspended and that person was found guilty, should he or she not pay back the salary paid during the period of suspension?

Co-Chairperson Shaikh informed the Deputy Minister and the Magistrates Commission that the decision whether or not to recommend approval of the magistrate’s suspension to Parliament would be taken by the individual Committees later that week.

A Member of the Portfolio Committee asked the Deputy Minister for a comment on the fact that 15 magistrates courts in Cape Town and the Cape Winelands had closed because someone had tested positive for Covid-19 at each of those courts.

The Deputy Minister acknowledged that Cape Town was the epicentre and it could be orderlies who were SAPS members as had been the case in the Cape Town Magistrate’s Court or a staff member as was the case in Paarl. The Department was working out a protocol for sanitisation, together with stakeholders.

 

Meeting report

Opening remarks
Co-Chairperson Shaikh greeted the Committee Members, Deputy Minister of Justice, Members of the Magistrates Commission and Mr Herman van Heerden, Principal State Law Adviser at the Department of Justice and Constitutional Development

Co-Chairperson Ms Shaikh stated that the meeting would begin with deliberation on the Treaty on Extradition and the Treaty on Mutual Legal Assistance in Criminal Matters between the Republic of South Africa and the United Mexican States. The treaties fell within the ambit of international agreements in terms of section 231(2) of the Constitution of South Africa, 1996, which required both Houses of Parliament to approve such treaties. That would be followed by a briefing by the Magistrates Commission on the provisional suspension of Magistrate Mkansi. Both Houses of Parliament were required to approve or not the provisional suspension of a magistrate in terms of section 13(3)(b) of the Magistrates Act, 1993. Members would receive the presentations and then the two Committees would meet separately in two days’ time (Friday 29 May 2020) to discuss the matters and to make a proposal to the National Assembly and to the National Council of Provinces. The adoption of minutes was deferred.

Co-Chairperson Shaikh stated that she would hand over to the Department to make a presentation on the two Treaties and thereafter Members could ask questions. She requested that Members be concise in their questioning as there was a sitting of the House of Assembly that afternoon. The Deputy Minister was invited to take the floor.

Presentation on the Extradition and Mutual Legal Assistance in Criminal Matters Treaties with the United Mexican States
Deputy Minister John Jeffery stated that it was the second treaty for extradition and mutual legal assistance that had been presented to the Committees – the Bangladesh Treaties had been handled previously - so he was sure that all Members understood that extradition treaties made it easier to handle an extradition while a mutual legal assistance treaty made cooperation by law enforcement easier. If countries did not have a treaty then the Extradition Act applied and the President had to sign the order whereas the Minister of Justice could sign if there was an extradition treaty. There was a mutual legal assistance Act of sorts which dealt with exchanges of information. There was a slide presentation and Herman van Heerden, Principal State Law Advisor at the Department of Justice and Constitutional Development would present.

Mr van Heerden stated that the treaties with Mexico were almost the same, with slight differences here and there. Due to the technical nature of the treaties, he would focus the most important articles.
The treaties had been negotiated during 2012 and President Zuma had authorised signature and submitted them to the Minister of Justice, Mr Radebe, but the treaties had never reached Parliament so the two treaties were being resubmitted. He mentioned that the first treaty between SA and Mexico was on 10 September 1886 when SA was still a British colony.

 Mr van Heerden presented the key articles of the extradition treaty. He pointed out that the Mutual and Legal Assistance Treaty was particularly required to assist in the fight against drug trafficking and other related crimes emanating from Latin America. He presented the main articles in the treaty.

Discussion
Ms N Maseko-Jele (ANC) noted that the document should have been sent to Parliament long ago. Who was responsible for the treaties not going to Parliament? What had happened? Would it happen again? Had anything happened to the person?  It was an embarrassment for SA. The Department for International Relations and Co-Operation (DIRCO) had had to go back to Mexico because there had been a change of government in Mexico. Who was responsible for sitting on the document?

Mr K Motsamai (EFF Gauteng) asked the Deputy Minister when his Department would suspend officials who were involved in the Bosasa corruption.

Co-Chairperson Shaikh indicated that the question did not relate to the matter on the table and ruled the Member out of order.

The Deputy Minister requested Mr van Heerden to respond to the question by Ms Maseko-Jele.

Mr van Heerden stated that after the treaties had been signed and the submissions had been completed and signed in 2014, all the documents had been sent to the then Minister of Justice, Minister Radebe, with a memorandum.  The memorandum had been returned to the Department without the documents, so the Department had assumed that the documents had been submitted to Parliament. After a few months, the Department had realised that the treaties had not gone to Parliament for ratification. Following enquiries, when Minister Radebe left office, the Department was requested to re-submit the documents. Mr van Heerden, therefore, could not say what had happened or who was responsible for the treaties not getting to Parliament.

Mr van Heerden added that Mexico only signed the treaties in June 2019 and so had not been waiting for SA since 2014.

The Deputy Minister added that the delay was problematic and his office would go into it and he would ensure that the ministry had better systems that would prevent a similar occurrence.

Ms Maseko-Jele stated that she was happy that the Deputy Minister would deal with it.

Ms Z Ncitha (ANC Eastern Cape) followed up on the Deputy Minister’s statement. The response given by the presenter was not adequate. The Department did not have a system of tracking. She was concerned about the lack of systems.

Deputy Minister Jeffery said that, as indicated, he would follow up and see that systems were put in place.

The Co-Chairperson asked the IT staff to mute the microphones of people that kept interrupting the meeting.

Mr S Zandamela (EFF Mpumalanga) asked why the treaties had not gone to Parliament in 2014. The Committee had not received an adequate answer.

Deputy Minister Jeffery said that he had indicated that he would investigate the matter. He could ask Mr van Heerden to repeat himself.

Co-Chairperson Shaikh said that the Deputy Minister had responded and would be investigating the matter. She suggested that the Committees take up the matter with the Deputy Minister at a later stage. She was unable to hear Mr van Heerden very clearly and there was no need for him to repeat his explanation.

Mr Zandamela stated that he had not been able to hear Mr van Heerden very clearly which was why he had asked that the Deputy Minister to respond.

Co-Chairperson Shaikh stated that it was important to mention that diplomatic relations between the new dispensation in SA and Mexico had been established on 27 October 1993 and the two countries had been working closely. 2020 marked 26 years of diplomatic relations between the two countries. The treaties would improve the effectiveness of law enforcement in both countries in the investigation, prosecution and prevention of criminal matters. In the next meetings, the Committees would note how the treaties would support the fight against crime as well as strengthen relations between SA and Mexico.

Presentation by the Magistrates Commission
The Magistrates Commission consisted of the Chairperson of the Ethics Committee Adv Cassim Moosa, Secretary of the Magistrates Commission Mr Mahamed Dawood and Mr Johannes Meijer of the Ethics Division of the Commission.

Adv Moosa stated that he was presenting a report on the provisional suspension of Magistrate L T Mkansi, a regional magistrate in Bloemfontein. Members would recall that the purpose of the report was to request Parliament to uphold the suspension of Mr Mkansi pending an investigation into his fitness to hold office as a magistrate as required by section 13(3)(b) of the Magistrates Act, 1993.
Mr Mkansi was a regional magistrate, 49 years old, and had been appointed as a regional magistrate on 1 December 2013. The misconduct charges preferred against Mr Mkansi related to prima facia evidence that he, during the period 28 March 2018 and 04 May 2018, had communicated on numerous occasions with an accused person who appeared before him on 24 counts of fraud. The evidence had come out as a result of the South African Police Service (SAPS) investigating the telephone records of the accused person and during that investigation, SAPS had stumbled upon the numerous calls made between Mr Mkansi and the accused person.

Adv Moosa stated that originally when the complaint was placed before the Ethics Committee by the Ethics Division, the Ethics Division recommended that the matter not be pursued because it was only one single count of a telephone call made between the parties. However, the Ethics Committee, having carefully considered the position, ordered a regulation 26(1) investigation and subsequently it was found that there had been 49 calls.

The Magistrates Commission had prepared a charge sheet in terms of section 13(3)(a) of the Magistrate’s Act and had requested the Minister to provisionally suspend the magistrate from office. The Magistrates Commission was of the view that the magistrate had been given a reasonable opportunity to respond to the desirability of such provisional suspension. The Commission was satisfied that the allegation was of such a serious nature that it warranted the decision to suspend the magistrate while the investigation was underway. The draft charge sheet showed that on 9 November 2019, the Minister had decided to provisionally suspend the magistrate.

Adv Moosa explained that the evidence that the Commission had, prima facia, was indicative of a serious transgression on the part of Mr Mkansi. The Commission did not ask for suspension without pay. He asked for the consideration of the report by Parliament in terms of section 3 (b) which required the Commission to table the report with Parliament within seven days of the suspension or within seven days after the commencement of Parliament. His purpose was to ask Parliament to pass a resolution as whether or not the suspension was confirmed and the Commission respectfully recommended that the suspension be confirmed. The transcript of the proceedings showed that the magistrate had gone through a bit of a process to recuse himself but Adv Moosa respectfully submitted that the allegations were of such a serious nature that the clarion call would be for the provisional suspension of Mr Mkansi with immediate effect pending an investigation into his fitness to hold office. A period of suspension would permit the Commission to investigate the situation.

Mr Meijer confirmed that all timeframes had been complied with as set out in the Act.

Discussion
Adv G Breytenbach (DA) supported the recommendation for suspension.

Mr R Dyantyi (ANC) proposed that the recommendation for the provisional suspension be supported pending a further investigation.

He reminded Adv Moosa that the last time that he had appeared before the Portfolio Committee, the Committee had had concerns about systemic issues in the Magistrate’s Commission and it had been agreed that those would be addressed soon. Members had expressed concern that the wording in the Act was not very clear and that needed to be cleaned up. He wanted to remind the Commission of that.

He added that it was clear that the Ethics Division had initially dropped the case because there was only one call. He was concerned that there had to be at least 40 cases before the Commission acted. That meant that the standard was very low. That troubled him.

Mr Dyantyi told the Deputy Minister and the Commission that he was very concerned about the courts in the Western Cape. As he spoke, in the epicentre of the Covid-19 situation in Western Cape, courts were closed. He listed 15 courts that he believed were closed because someone had tested positive: Vredenburg on the West Coast, Goodwood, Bishop Lavis, Blue Downs, Cape Town Court, Cape Winelands, Vredendal, Piketberg, Athlone, Fezeka, Khayelitsha, Stellenbosch, Philippi, Worcester, Ceres.

Those courts had closed in the last three days. What actions were being taken?

Ms Ncitha stated that the report was straightforward and the transgressions by the magistrate were very serious and so she supported the suspension.

Mr Zandamela stated that it was unethical conduct by the magistrate; it was an action of corruption. He did not know how the Magistrates Commission decided to recommend suspension with salary. He asked the Deputy Minister to indicate how long the matter would take as there was evidence and a corrupt person could not be kept on the payroll.

Ms M Mmola (ANC Mpumalanga) supported the suspension of the magistrate pending further investigation. She raised a point with the Ethics Division. It was unacceptable to make a decision without a thorough investigation.

Mr T Dodovu (ANC North West) could not hear clearly but he supported the suspension. The Commission had followed all the necessary processes to suspend the magistrate. He asked, if there was an irregularity, at what point did the Magistrate’s Committee determine that there had to be a criminal process against that particular person. Such processes had to run concurrently. Had the Commission opened a criminal case against the person?

Ms Maseko-Jele stated that she also supported the suspension. She wanted to reiterate what Adv Batohi had said even though the Co-Chairperson and the Commission had not been at that meeting. She could not quote Adv Batohi word for word but she had said maybe it was high time that magistrates were also subjected to a similar enquiry as the Zondo Commission as there were so many cases coming from magistrates. It seemed as if a lot was happening in that area and it was an area that the Committee wanted to keep clean. Could the Commission comment on that?

Mr X Nqola (ANC) stated that he was covered and supported the suspension of Magistrate Mkansi.

Mr A Gxoyiya (ANC Northern Cape) said that there was a message that should be sent across the public service: when a person was suspended and that person was found guilty, he or she had to pay back the salary paid during the suspension. Government needed to reclaim the money. That was something that should be taken up by government. Such people knew that they were guilty and used that time to find another job. The Department of Justice should claim the money back. He understood that one could not pre-empt the decision and stop the salary before the investigation, but that money should just be lost.

Adv H Mohamed (ANC) stated that the ANC supported the recommendation of the suspension of the magistrate.

Co-Chairperson Shaikh clarified the procedure. The briefing had been received at the meeting, but the decisions would take place in individual meetings of the two Committees on Friday of that week.

Adv Moosa stated that the further detailed representation to be made to Parliament as agreed in February 2020 had been delayed by the effects of the epidemic. He assured Members that the Commission would be making a presentation to the Committee in respect of the aspects raised as soon as circumstances allowed.

Adv Moosa noted the question about the decision of the Ethics Division that no steps be taken on account of there being only one transgression. He explained that there were two separate structures – the Ethics Division and the Ethics Committee – they complemented and supplemented each other but were independent of each other. When the Ethics Division had debated the matter, there was no evidence of misconduct but when the Ethics Committee had received the report, it was decided to request an investigation and that was when the evidence became available to the Committee.
He asked Mr Meijer to respond to the question about full pay.

Mr Meijer stated that the Ethics Division had received a complaint on one count of one call and the magistrate’s explanation that a telephonic conversation might have taken place between the accused and a family member did not suggest that there was a need for action. However, in an unrelated investigation, the police had found that there were 48 other counts of such phone calls and at that time the case was before the Ethics Committee and a decision was taken by both the Division and the Ethics Committee that the magistrate should be suspended and further investigation undertaken.

In the matter of remuneration, Mr Meijer stated that the Commission was of the view that withholding remuneration had to pass constitutional muster. It was only in exceptional cases that the Commission would withhold a salary. In the van Rooyen case, the Constitutional Court had ruled that it was only in exceptional cases that a salary could be withheld. It would be different if Mr Mkansi was found guilty and the Minister suspended him on the advice of the Commission while a report was tabled in Parliament for him to be removed from office. At that point, the Commission would probably withhold the salary.

In response to the question of how long it would take, it would depend on the current situation but as soon as the lockdown had been downgraded to an acceptable level, the matter would be expedited.

The Deputy Minister explained that, to ensure judicial independence, the Minister had very little say over the disciple of magistrates, or judges for that matter. The Minister could not decide to suspend a magistrate or a salary. In the van Rooyen case, the courts had said that a salary could be suspended only in extreme cases. He was not sure that it was within the Labour law to insist that the salary paid under suspension be paid back. More recently, the Constitutional Court had determined that the National Director of Public Prosecutions could not be suspended without a salary.

The Deputy Minister noted that people did complain about how long it took to finalise such a matter. Investigations did run concurrently with a criminal matter. Sometimes, however, one had to wait for a criminal matter to be finalised but in a civil matter, it was easier to find against a person as, in civil cases, a decision was made on a balance of probability. One could be found not guilty in a criminal trial and yet be found guilty in disciplinary or civil matters. He reminded the Committees that magistrates were not civil servants, but similar rules applied as in the case of judges. The ruling body was the Magistrates Commission and not the Judicial Services Commission.

In respect of Mr Dyantyi’s question about courts, the Deputy Minister had battled to get hold of the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             regional details but he had checked with the two chief magistrates. Only one magistrate had tested positive. In Khayelitsha, a clerk had tested positive and the court was not functional as it was currently busy with sanitisation and would open on Monday. At Athlone court, it was simply a scare. Fezeke court was being sanitised and was closed. In Philippi, there was an allegation of a staff member being positive and that court would be sanitised, if necessary.

The Deputy Minister stated that in the other Cape Town cluster, the Parow municipal court was closed due to an orderly who had tested positive, but it was in a separate building and had not affected the magistrate’s court.  He acknowledged that Cape Town was the epicentre and it could be orderlies who were SAPS members as had been the case in the Cape Town Magistrate’s Court or a staff member as was the case in Paarl. In Stellenbosch, the reason for the closure was an awaiting trial inmate who had tested positive. He was aware that there were many cases and the Department was working out a protocol for sanitisation, together with stakeholders. Legal Aid would not enter the Khayelitsha court unless the whole court was sanitised and not just the area where the clerk had worked.

He added that court closures due to the need to sanitise were happening in other areas: Kliptown in Gauteng, Port Elizabeth Magistrate’s Court and Pietermaritzburg Magistrate’s Court. The problem was more prevalent in areas where Covid-19 was more prevalent but caused disruptions. The complication in Khayelitsha was that the person was tested but it had taken some time for the test results to come out.

The Deputy Minister apologised for the ad hoc report but stated that the Department of Justice and Constitutional Development (DoJ&CD) was trying to get better systems in place and to put information on its website, but it also needed to look at privacy issues in respect of naming the position of the person who had tested positive.

Co-Chairperson Shaikh asked for follow-up questions.

Ms Maseko-Jele wanted response to her comment.

Mr Dyantyi thanked the Magistrates Commission for its response and thanked the Deputy Minister for his response. He asked him to make a follow-up regarding the protocols for sanitisation. He understood the problems with the test as there was a nation-wide time lag but every court needed to follow protocols to the tee.

The Deputy Minister asked Adv Moosa to respond to Ms Maseko-Jele’s comment. He assured Mr Dyantyi that he would push DoJ&CD harder for a protocol. The Khayelitsha court opening was being delayed because there was no agreement about what needed to be sanitised. That had to be worked out quickly. He also mentioned the difficulty created by the fact that Covid-19 also had positive and  false positive test results that needed to be managed. One magistrate had tested positive after training a group of magistrates. He had had the test because he needed it for something else. The other magistrates had to be quarantined but when he showed no symptoms, he had a further two tests, both of which were negative. The false positive and false negative tests made the situation even more difficult.

Adv Moosa asked Ms Maseko-Jele to explain her question about what Adv Batohi had said.

Ms Maseko-Jele explained that Adv Batohi had said, in response to a question about a prosecutor who had been arrested for fraud, that maybe there should be a parallel Commission just like the Zondo Commission as there were so many issues of that nature in the magistrates courts. So many issues of that nature had come before Adv Batohi.

Adv Moosa replied that they would not be averse to a Commission but the process would require the Magistrate Commission to consider the proposal and deliberate on it but the acts of corruption were dealt with by the Magistrate Commission. They were coming up on an ad hoc basis and he did not see that there were sufficient cases relating to the magistrates to justify a commission but he would take it back to the Commission and report back when he next met with the Committees.

Concluding remarks
Co-Chairperson Shaikh thanked the Deputy Minister, Mr van Heerden, and the Magistrates Commission. Co-Chairperson Magwanishe had nothing further to add.

The matters would be taken to the two Committees for decisions that coming Friday.

The meeting was adjourned

 

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