Magistrates Commission on disciplinary matters and systemic issues; with Deputy Minister

Meeting report

Magistrates Commission on disciplinary matters and systemic issues

Adv Cassim Moosa, Chairperson: Ethics Committee, Magistrates Commission (MC), said the presentation was about the systemic challenges that the MC had been experiencing with delays relating to misconduct matters. In February, it had shared with the Portfolio Committee a document written by the Chief Magistrate, Mr Chris Barnard. The document was titled, ‘Judicial Conduct and Discipline, Magistrates Court Judiciary’. The purpose of the document had been to brief the Select Committee (SC) on Security and Justice regarding the misconduct and processes for magistrates, with specific reference to the following remark that was raised under focus areas point 5 in the Committee document dated 18 April 2017: “Slow pace of the disciplinary processes of magistrates add enormous costs to the State and a negative impact on court service. The Minister of Justice and the MC to discuss SC concerns on the matter and how this could be addressed possibly through legislative amendments. At its meeting with the MC on 8 March 2017, the Select Committee had requested the Department of Justice and Constitutional Development to review the Magistrates Act of 1944, as well as other relevant legislation in order to streamline disciplinary processes and steps taken in respect of Magistrates.”

Adv Moosa that in order to deal with the systemic challenges that were faced and in order to respond to the query that was raised in 2017, a good idea would be to structure the argument by going through the legal framework and processes which in the document had been contained in Annexure Y. The starting point would be the advent of the Constitution of the Republic of South Africa, which entrenched fundamental rights and had a profound effect on branches of the law, as it provided a mechanism for citizens, including judicial officers, to challenge legislation and actions by the State which infringed on those rights.

Chapter 2 of the Constitution contained several provisions of relevance to employment and labour law. Section 23 of the Constitution dealt specifically with labour relations which, among others, determined that everyone, including judicial officers, had a right to fair labour practices. Although the Labour Relations Act was applicable to magistrates, they were not bound it. The principle that was involved was that the common law guaranteed fair labour practices. Therefore, all courts were enjoined, when applying and developing common law, to have due regard to the spirit, purpose and the object of the Bill of Rights, as contained in the Constitution.

The Constitutional Court had two landmark judgments which made it clear that the 10 appeals from the labour courts were interpretational of labour relations that affected constitutional rights or fair labour practices. The important case which the Commission and many people relied upon within the judiciary was the case of Van Rooyen and Others v the State and Others 2002 (5) SA 246. This was a Constitutional Court decision which ordered that, amongst others, the provisions of Section 13 of the Magistrates Act 1993 which deals with the discharge of Magistrates and regulations 25 and 26 of the Code of Conduct -- whose provisions were also contained in Annexure Y with a few minor exceptions -- were not inconsistent with judicial independence and the Constitution. The amendments as ordered by the Constitutional Court had already been done.

Mr Johannes Meijer, member of the Magistrates Commission, had already forwarded to the relevant secretaries the spreadsheet relating to misconduct cases stemming as far back as 1995 to date. It showed that in all misconduct cases against magistrates in which there was a review on appeal to the higher courts, even to the Supreme Court of Appeal, the MC had always acted procedurally and substantively fair in all matters. The MC at all material times had been very mindful of the precepts of the Constitution and the guaranteed rights that had been enshrined in the Bill of Rights (BOR).

The question that had been asked many times was, ‘what was the reason for the delays in finalising disciplinary matters?’ The MC had a legitimate expectation that magistrates would adhere to rules and procedures in the workplace. Conversely and likewise, magistrates had the same expectation that the Commission would adhere to the timelines set out in internal procedures. A fair disciplinary process was inevitably founded on the availability of witnesses and accuracy of evidence, all of which should be promoted in order for the inquiry to take place timeously.

Despite this principle, which was enshrined in this document, it was not always feasible in many of the instances for the Commission to follow this procedure, because it was entitled in terms of the Act to investigate possible disciplinary infringements fully, including processes such as forensic and other audits. When one entered the domain of including processes such as forensics and audits, the nature of the inquiry could take a lot of resources and a lengthy period. However, notwithstanding that these measures were time consuming, the MC addressed these investigations with diligence.

Although the MC was aware of its responsibility to have disciplinary matters dealt with expeditiously, there were many factors over which it did not have control. Problems that the MC had in finalising matters included the availability of parties, such as witnesses, the accused magistrate, his/her legal representatives, defence witnesses and interpreters, or requests for reviews and postponements by the accused magistrate.

The MC was mindful of the need to finalise matters speedily and of the unnecessary burden on the fiscus for matters not being finalised. Although the magistracy had its own disciplinary processes for its day-to-day operations, of which members were aware, the reasons for delays in the finalisation of misconduct matters did not differ from the ordinary workplace. Although the misconduct inquiry was a proceeding sui generis (unique), it would be found that in many instances, the delays were very similar to the ordinary workplace.

He quoted the following from paragraph 22 of the document:

“The view is held that the mandate of the Commission and its supporting component regarding disciplinary matters are properly executed and the all relevant processes are finalised within the statutory time frames. There are no delays in formulating charges once the Commission has taken a statutory resolution in this regard. The Commission and its Chairperson should be complimented for the effective, objective and fair way in which they deal with disciplinary matters against Magistrates. The statistics provided monthly to the Deputy Minister in this regard speaks for itself. Matters against the Commission taken on review to the High Court, have thus far not been successful. The performance of the Commission is in absolute contrast to the situation in the Judicial Services Commission and in Government Departments, where it is even worse, as indicated in Parliament by the Public Service Commission on 2 May 2012. It was indicated that the vast amount of money was spent on officials who were suspended precautionally while departments do not comply with the disciplinary process. In some instances, it takes 10 months in government departments to formulate a charge after an official was placed in suspension. The Department of Justice and Constitutional Development has specifically been implicated by the Public Service Commission in this regard.”

Adv Moosa said that having duly taken cognisance of the comments made in that paragraph, and relating them to the report of 2 May 2012, the MC had been alive to the fact that its processes were always under scrutiny by both members of the public and members of the judiciary. Ultimately the MC was responsible and must report to Parliament. There was oversight at all material times over the MC.

Under these circumstances, the MC would like to give the assurance that they do everything possible to ensure that they speedily deal with matters. He shared the last paragraph in a publication titled ‘The Judiciary in South Africa,’ by Hoexter and Oliver, which states: “The Magistrates Commission seems to have been more successful in holding magistrates accountable than the Judicial Service Commission has been in relation to judges.” The rationale for this statement was largely because the MC was guided and bound by the statutory mechanisms for dealing with matters against magistrates. The statutory mechanisms were effective and gave rise to procedural and substantial fair processes.

The MC had identified all systemic issues and had attempted on a case by case basis to manage these matters and ensure putting mechanisms in place in order to curtail unnecessary delays in their finalisation. He assured the Members that the Commission had actively identified the problem areas and taken the steps necessary in the circumstances to deal with matters to ensure that they were finalised. If there was anything he had overlooked, Mr Meijer could assist him.

Mr Meijer said that he had nothing to add. Adv Moosa had given a full view of the MC’s challenges involving disciplinary matters at this stage.

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, said that his concerns about how long the process took were known, and that it would be better for him to reserve his comments for the Commission and the Ethics Commission.

Discussion

Mr E Mthethwa (ANC, KwaZulu-Natal) said he understood that the MC dealt with a lot of complicated matters. Why was the report from the MC not compiled through a judge and then brought to Parliament with all other elements, except the ethical issues that were being dealt with? He proposed that in future, this Committee should request a judge to chair the MC, where all the sub-committees were present in order to bring a consolidated report to Parliament. This would also help Members to understand what goes on in the MC.

Mr R Dyantyi (ANC) said the Ethics Committee had been asked to come to Parliament since Members of Parliament did not participate in that Committee, and the only opportunity they got to engage with matters was when they were brought to Parliament. Members were not happy with what had been presented to them. There were more systemic issues that they needed to be told about. The presentation that had been sent to Members confirmed that there were systemic issues, and the delays were one of the many issues. The problems that were affecting the Ethics Committee were matters beyond its own jurisdiction and control -- matters that would overlap the various sections of the MC.

He agreed with Mr Mthethwa that something different needed to be done. It was very clear that the way the MC operated needed some modernisation. Money was allocated to the MC, but their accountability and reporting mechanisms were not seen, as they posted their issues instead through the Justice Department. The MC needed a consistent way of indicating how they accounted to Parliament. Besides sending various members to participate in the various committees, how did they account for who sent them there?

He said the report had raised issues about the draft Management Amendment Bill, which were going to be critical. There were three issues that had been highlighted in relation to magistrates -- the complaints on verdicts, sentences and orders. He said that complaints on corruption and fraud should also be added. These three highlighted issues were systemic, but they were not yet a problem, but the Committee would always be dealing with problems if there was no system. The systemic issues that affected the MC overlapped to more than one unit. He therefore proposed that it would be proper to extend an invitation on behalf of Parliament to the Chairperson of the MC, Judge Aubrey Ledwaba, to brief the Committee on systemic issues in the MC and whether there was a plan to address them. He was not sure whether having the Select Committee and the Justice Committee question the MC about its role had been done before. A presentation such as this might provide a holistic view of the MC’s issues.

Mr W Horn (DA) said that the Deputy Minister would be in a better position to answer questions about the financial management of the MC. Its finances were an allocation from the Department of Justice. Therefore, in terms of accounting to the Department of Justice, it reported to Parliament specifically through the Portfolio Committee in the National Assembly. He did not have a problem with an intense and more focused engagement with the MC, although if the Committees were to embark on that process, it was important to ask at what stage their duties would be extended to directives to account to the Judicial Service Commission.

Many questions had to be asked about the judicial sub-committee not being able to effectively deal with issues of discipline over the years. Two other issues had been previously identified, if not systemic in nature, at least contributing to delays in the discipline of magistrates. Firstly, the investigative phase of a hearing was being hamstrung by the fact that there was no power of subpoena, specifically when seeking information, and evidence rested with other state organs like the South African Police Service (SAPS). He asked about the types delays the MC experienced. Secondly, it was previously reported that in some instances, hearings were delayed because there seemed to be a problem with compiling a panel to hear the disciplinary matters. It seemed the whole system depended largely on magistrates who volunteered to serve on the panels that dealt with disciplining their peers, and not many magistrates were wiling to do this. This problem was even more prevalent in terms of the diversity of members willing to assist with disciplinary matters. The magistracy had gone a long way in terms of transformation. Bluntly, not many black magistrates volunteered to serve on these panels. Did this still affect the turnaround time of disciplinary hearings?

Mr Dyantyi asked what current cases were before the Ethics Committee. Could Adv Moosa quantify the backlog that was currently being experienced, and what the turnaround time for the start and completion of each case was, in addition to the 10 months’ turnaround time to lay a charge? What were the issues before the Executive Committee that were checked by the Justice Department?

Magistrates Commission’s response

Adv Moosa said he took due cognisance of the issues raised by Mr Mthethwa and Mr Dyantyi about the Appointments Committee not going to Parliament. The Magistrates Act prescribed that the Commission needed to brief Parliament on misconduct matters, and that was why only misconduct matters were reported to Parliament. He did not see why the suggestions of Mr Mthethwa and Mr Dyantyi should not be carefully considered in relation to the other sub-committees, like the Appointments Committee. The Magistrates Act did not make a provision except for the misconduct matters for any other Committee, and/or the Chairperson of the MC, to present any form of report. This would be the domain and at the discretion of the Houses of Parliament. In principle, there should not be any difficulty for Members to see and know what was happening in the MC.

Regarding the issues and difficulties that Members had raised about the Appointments Committee, it had been observed over time that when it came to misconduct matters, the MC sometimes came in at the tail end. Different mechanisms had been put in place, to the extent that just as had been done with the Judicial Services Commission, the MC had allowed the judges to partake and be involved in the interviews of magistrates. That gave greater accountability to the public. Some of the magistrates had slipped through the net on matters that should have been picked up during the interviews, but had not. In the spirit of being fair and accountable, the MC had allowed the judges to be provided with curricula vitae (CVs) beforehand, to be involved and make recommendations.

It was in the domain of the Chairperson of the Committee to invite the chairperson of the MC to brief the Members on the Commission’s operations. This would create a synergy between the MC and Parliament. The MC was mindful of the fourth industrial revolution, and the new way of doing things, and was moving in that direction. Because of the COVID-19 pandemic, the Ethics Committee shared information daily and had indicated it would have meetings on the Microsoft Teams platform.

He assured the Members that the MC would always take advice, and that it was here to serve the people of South Africa and was happy to be guided in that manner.

He said that Mr Dyantyi might have misunderstood his submission regarding 10 months to formulate a charge. It was the report from the Public Service Commission on 2 May 2012 that had criticised government departments for taking lengthy periods of time to formulate charges. The MC had never made itself guilty of taking a lengthy period to formulate charges -- it moved with haste. When the issue of Magistrate Nair occurred, the MC met to discuss the matter the very next day.

With the strategic plan, which had been discussed in relation to the draft Management Amendment Bill was out of his domain as the chairperson of the Ethics Committee of the MC.

It was a good idea to share with the Members the systemic challenges that the MC had. The main challenge was that only Mr Meijer and Mr Louw were permanently involved in the Ethics Division. There was a plethora of cases coming in, but there were not sufficient people to deal with them. There had always been criticism that there were no people of colour in the Ethics Division, just Mr Meijer and Mr Louw, who were permanent magistrates involved in these matters. The Ethics Division did not seem to attract people of colour to assist in dealing with such matters. There was also a challenge in finding magistrates to lead the evidence. There were also external challenges. He proposed having a pool of magistrates, even retired ones, to preside at hearings to speed up the finalisation. Mr Horn had also raised the difficulty of getting cooperation from other departments, specifically SAPS. He agreed that there was a problem in gaining cooperation from other state organs. He welcomed assistance and guidance from the Committee on how to get cooperation.

One of the reasons why members of the lower judiciary did not want to give up their positions at the courts and go to Pretoria to work in the Ethics Division was because of financial considerations. The challenge was that magistrates who were appointed to the Ethics Division were appointed at the level of a magistrate. An individual who did judicial quality assurance, which was similar to work done in the field, was appointed at the level of a senior magistrate, which had a higher salary. That was why there was no attraction to create a sufficient pool of magistrates, especially of colour, to the Ethics Division. Members in the lower judiciary would not want to take a cut in their salary.

Mr Meijer said that the Ethics Division received a lot of complaints daily. Some of the complaints were very informal and were dealt with informally. The matters were referred to the Heads of Courts, the Regional Court President, or the Chief Magistrate in the cluster, to deal with the matters and not burden the Ethics Committee. If they were not able to deal with the matters sufficiently, the complaints were then referred back to the MC and were then dealt with in a similar way as formal complaints.

With formal complaints, preliminary investigations were conducted all the time, but the appointment of magistrates to deal with preliminary investigations was a difficult task. Clusters did not want to release magistrates for several reasons, such as a shortage of magistrates at a particular court.

The MC received daily complaints from the public about people who were incarcerated, and were not happy with the sentences or the findings in the judgments of the courts, in which the MC could not interfere. However, it took time. The MC had received ±300 complaints in 2015, ±170 complaints in 2016, ±120 complaints in 2017, ±270 complaints in 2018, and ±207 complaints in 2020. He and Mr Louw were the only two people to deal with these complaints, and Mr Louw was soon to retire.

There was no backlog in charging matters. The reports on misconduct matters, which were referred to Parliament, were only those where the magistrates had been provisionally suspended from office. There were numerous other misconduct enquiries also running, where the MC had not recommended the provisional suspension yet.

Chairperson’s comments

The Chairperson said this matter needed to be finalised in order to discuss the second issue. An urgent meeting with the chairperson of the MC was needed to discuss the consolidated report and the frequency of reporting to Parliament. The issues relating to fraud that were being investigated were a threat to the reputation of the judiciary, because people might not distinguish between a magistrate and judge because they were all judicial officers. The approach should be to say that this was a threat against the judiciary, and as such it was being elevated. There would be a discussion about how many times annually these discussions and reports with the Chairperson of the MC needed to occur. The other issue that needed to be discussed with him was that some magistrates lacked knowledge about the law, which was also a relevant issue for the next discussion. It was important to ask how magistrates in the rural areas got their law reports and how frequently were they updated on recent legislation that had been passed.

In addition to Mr Horn’s point about using retired Magistrates, judges that had been discharged from active duty could be added. It was important to think about the end goal, which was a single and unified judiciary. Having a pool of retired magistrates and judges that had been discharged from duty could be discussed with the Chief Justice, the Judge President, the Minister and the Deputy Minister, because this was a serious pool that could be used.

The issue of information and communications technology (ICT) was concerning, because it was not an issue that was related to only the MC, but to the government as a whole. The response to ICT was very basic. The world had moved. ICT should be thought of not only in terms of data collection and data manipulation, but should be thought about as enhancing research and artificial intelligence. People were overwhelmed because they were not using ICT smartly to assist them. The response to this issue was a 1960s response that needed more attention. This meeting was very urgent. He would discuss with the co-Chairperson sending a joint invitation to Judge Ledwaba to discuss these matters.

The issue of corruption was a symptom of a bigger problem. These types of matters needed a comprehensive response and an intervention from the MC. There had to be an information system that could also assist in risk management when someone was appointed. All of these matters would be discussed with Judge Ledwaba. Accountability for money and how the MC accounted for its funds must also be raised with the Department. A temptation he would like to avoid would be checking what legislative interventions were necessary.

Co-Chairperson Shaik said the Chairperson was talking about the legislative review that might have to take place on this matter and had covered a plethora of matters in terms of what had been raised and the responses that had been received from the MC. At some point, it would also be interesting to receive a response from the Department of Justice.

The Chairperson said that there might be enough to go into legislative proposals, but there would need to be more interaction with the MC before thinking about what legislative interventions needed to be made.

Ms J Mofokeng (ANC) said she agreed with everything the Chairperson had said. There was a problem with strategy -- the MC did not have a strategy. The performance must go with the vetting, and it should be realised that during a year or two in office, much could change. There should be a plan to deal with the effect of the fourth industrial revolution. The MC also had to have young people in the mix.

The Chairperson said these were the issues that would be discussed with the Chairperson of the Commission, because it would be about the interventions.

Mr Mthethwa said that he sat on the Appointment Committee, and sometimes there were opportunities to interview magistrates, and it was found there were a lot of backlogs that were not being attended to. A way should be found for all the consolidated reports of what was happening in the MC to be sent to the office of the Chairperson, even if it was not sent to the Committee.

Suspension of senior Mossel Bay magistrate

The Co-Chairperson proceeded with the next item on the agenda. The Members would receive a briefing from the MC on Ms Letitia Freeman, a senior magistrate at Mossel Bay, regarding her suspension.  Procedurally, there would only be a deliberation on the presentation.

Adv Moosa said the report about Ms Freeman was to inform Parliament about her suspension from office as a magistrate on the basis of misconduct. Ms Freeman was a senior magistrate and a judicial head of office at the Mossel Bay district court. Most of the briefing that the MC had been doing in Parliament did not involve junior members of the judiciary, but involved judicial heads of magistrates -- senior management, people who would be expected to be of impeccable character beyond any form of reproach, who were making themselves guilty of fraud and a whole host of other serious offences.

Ms Freeman had been appointed as a senior magistrate from 1 May 2017, and on 17 November 2017 she had been charged with 29 counts of misconduct. These related to acts of dishonesty that had been committed between 2015 and 2017. For 21 of the misconduct charges, Ms Freeman had made incorrect statements, reporting transport claims where the kilometres were greater than the distances between the destinations. She argued that she had conducted an inspection and claimed for km that had been travelled, and where there had been no inspection. In one of the claims, she had indicated that she had used a luxurious Audi A4 to travel between point A to point B, where the Automobile Association (AA) rates per km for a higher engine capacity were greater than for those with a lower capacity. Ms Freeman was frugal. and used a Fiat Uno, but had claimed for an Audi A4.

In her application for appointment as a senior magistrate, she had unlawfully declared “not applicable” to a section relating to her involvement in a prior business in the past 10 years. However, she was reported as being an active director and founding member of a company at that time. The added difficulties in terms of the bona fides of Ms Freeman was that when she applied for appointment as senior magistrate, in addition to misrepresentation of her business interests, she had been asked if she had ever been convicted of any offence or crime. One would expect a person who was appointed as a judicial officer to be astute, honest and disclose forthright what was meant to be disclosed. However, Ms Freeman had indicated that she had never been convicted of any offence or crime, whilst in truth she had been convicted of theft and been sentenced on 6 May 1993. She was also not timeously attending to inquest cases. Inquest matters were being delayed for 20 months.

When she was provisionally suspended from office, it was only at this time that these matters surfaced. After a fair and justifiable inquiry been held, Ms Freeman was found guilty by the presiding officer on 29 counts of misconduct involving dishonesty. A recommendation from the presiding officer was her removal from office as a magistrate. The MC had carefully considered the judgment of the presiding officer, as well as the representation made by Ms Freeman, and concluded that the appropriate way to deal with this matter was to ensure that she was removed from office. It was overwhelmingly decided that the only appropriate sanction in this matter would be that she be removed from office. This was in line with what Members had said in about corruption and fraud -- that there should be zero tolerance for such matters, because they were bringing the judiciary into disrepute. He asked the Members to sanction the removal from office of Ms Freeman.

He agreed with what Members had said previously -- that when applications for appointment were brought to the MC, applicants needed to be found fit and proper, and should therefore be subjected to a police report. He asked the Committee to consider whether the MC should move towards having applicants making a declaration of being fit and proper, with checks and balances being done by the SAPS. This would reduce the load of the Ethics Commission. It was important that mechanism be put in place at the beginning to deal with such matters. He concluded by asking for the removal of Ms Freeman.

The Co-Chairperson said that Members should focus only on Ms Freeman’s matter.

Mr Meijer said that he had been advised in an email earlier that evening that Ms Freeman had sent an email to the Secretary of the Commission, tendering her resignation.

Adv Moosa said that he would forward Ms Freeman’s email to the secretaries of the Portfolio and Select Committees, and the implications of the resignation.

Closing Comments

The Co-Chairperson asked the meeting to close on this item, and await the relevant correspondence  from both the MC and Ms Freeman.

She thanked the MC for making time for the engagement. The magistrates and judicial officers should have the highest ethical standards and their behaviour should be above reproach, as this would instil confidence of the public in the judicial system.

The meeting was adjourned