Magistrates Commission on suspension/removal from office of magistrates

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Justice and Correctional Services

25 June 2020
Chairperson: Mr G Magwanishe (ANC) & Ms S Shaikh (ANC, Limpopo)
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Meeting Summary

Audio: Magistrates Commission on suspension/removal from office of Magistrates

The Committee was convened to receive an update by the Magistrates Commission on the confirmation of the suspension/removal from office of Ms Letitia Freeman, a senior magistrate of Mossel Bay, in terms of section 13(4)(b) of the Magistrates Act of1993. She had sent an email announcing her resignation while the matter was being considered during the Committee’s meeting the previous week, and the resignation had been refused.

Members wanted to know what the proper procedure for a magistrate’s resignation should be, and the Commission’s expectation of the Committee. They asked whether Ms Freeman had been informed of the causes resulting in the refusal of her resignation, her rights and possible subsequent options to challenge the refused resignation, as well as the financial implications if she was removed from her office. They recommended that the Commission should improve its operations to avoid incidents such as Ms Freeman’s resignation happening again.

Having considered the report on the confirmation of suspension/removal from office of Ms Freeman, the Committee recommended that the National Council of Provinces resolve not to restore her to the office of magistrate.

The Select Committee on Security and Justice considered the Magistrates Commission’s quarterly progress reports on the provisional suspension of three judicial officers which were still in progress, and received explanations for the delays, the latest of which was the Covid-19 pandemic.

During the meeting, Members raised concern at the alarming increase in the number of reported corruption cases in the judiciary system, and the impact of COVID-19 on the court system.

Meeting report

Suspension/removal from office of senior magistrate

Adv Cassim Moosa, Chairperson: Ethics Committee, Magistrates Commission (MC), said the

matter regarding the suspension/removal from office of Ms Letitia Freeman, a senior magistrate in Mossel Bay, in terms of section 13(4)(b) of the Magistrates Act, 1993 (No 90 of 1993), had been discussed at the Committee’s previous meeting on 17 June 2020.  During the meeting, the Magistrates Commission had received Ms Freeman’s resignation at 5:11pm. Thereafter, the matter had been referred to the Committee that was deliberating on Ms Freeman’s matter. 

The Magistrates Commission’s decision had been that the resignation of Ms Freeman had not been accepted, and she therefore remained a magistrate of South Africa’s judiciary up until the time that she had served her subsequent notice period. Even if the Magistrate Commission had accepted her resignation, she would still have had to serve her notice period until 31 July 2020. Either way, whether the Magistrates Commission had accepted her resignation or not, the Commission still had full jurisdiction over Ms Freeman’s matter. Being an employee at the Magistrates Commission, she could be dismissed from service, or be subjected to disciplinary action, etc.

Adv Moosa reminded the Committee that magistrates were not public servants, and thus were not subject to labour law.

Based on the information provided in the report, as well as the decisions made by the authorities cited in the reports, he asked the joint Portfolio and Select Committee to proceed in accordance with the recommendations requested in the report, as to whether or not Ms Freeman should be restored in terms section 13(4)(c) of the Magistrates Act 1993.


Mr T Dodovu (ANC, North West) said that although he fully understood the briefing content, he still needed clarity on a few issues. What would have happened to Ms Freeman had she not tendered her resignation? He wanted to know about the progress on the disciplinary hearing, and whether the disciplinary hearing had started.

Ms J Mofokeng (ANC) said that the Committee must accept that Ms Freeman’s time was over as a Magistrate. It was unacceptable that at the last meeting, when Magistrates Commission’s chairperson had asked Adv Johannes Meijer, MC member, if he had anything to add, Mr Meijer had very hesitantly brought up the resignation letter which he had just received from Ms Freeman. She did not think it professional of the Commission to prolong this matter, because it should already have been concluded. A person like Ms Freeman should not be in the magistrates’ court. 

Mr W Horn (DA) disagreed with Ms Mofokeng’s view. He said that if the Magistrates Commission had already seen the resignation prior to the briefing in the last meeting, then it would have been not acceptable. However, as his memory served, the Commission had received Ms Freeman’s resignation only during the meeting, and it had been put on record.

Mr M Mmoiemang (ANC, Northern Cape) agreed that the reasons included in the report constituted the basis for the Commission. Given the development of the event, it became important as to whether the Commission had communicated with Ms Freeman on the reasons that her resignation had not been accepted. He enquired about Ms Freeman’s options after her resignation has not been accepted, and if she had exercised any of those options so far. He wondered if the Select Committee and the Portfolio Committee had not been too cautious in the handling of her resignation.

Ms Z Ncitha (ANC, Eastern Cape) commented that this was the first time that she had heard of the National Council of Provinces (NCOP) or committees dealing with a disciplinary hearing, and the person involved had tendered her resignation. She emphasised the need to have a concrete timeframe in place for the person involved to respond to a disciplinary hearing so that such an issue would not happen again. She demanded getting a letter from Ms Freeman, as well as a letter from the Department which stated its reasons for refusing Ms Freeman’s resignation, for the Committee to take any decisions.

Mr E Mthethwa (ANC, KwaZulu-Natal) wanted the Commission to state what it expected this Committee to do now, since it had turned down Ms Freeman’s resignation. He enquired about the process that would follow if Ms Freeman challenged the validity of the Department’s refusal of her resignation. Would she be expected to resume her duties, even if she challenged the Department’s decision? What would happen if she refused to resume her duties?

The Chairperson said that Ms Freeman’s matter had gone through all the due processes, and she had been found guilty. The job of Parliament was now either to agree or not agree to the removal of Ms Freeman.  He also sought clarity on the financial implications in the scenarios where she resigned, or where she was removed.

Magistrates Commission’s response

Adv Moosa explained that the due process of law had been followed from Magistrates Commission’s side. Ms Freeman’s matter had been brought before the Committee for Parliament to consider her removal.

Because COVID-19 had made people work remotely from home, the resignation notice which Ms Freeman had tendered would not have been seen under normal circumstances, since the business hours ended at 4pm. He believed that the Commission’s secretariat had done the right thing by sending this email to Mr Meijer, but by the time he had seen the email it was already 7pm, while he was addressing the Committee at the last meeting. He believed that had Mr Meijer not informed him of Ms Freeman’s resignation on that day, it would have had dire consequences.

Adve Moosa believed that the referral of this matter was a good opportunity for magistrates to improve their own system, and to determine what time the cut off would be before such matters came to Parliament.

He cautioned Members that had the resignation been accepted, there would have been no legal justification for Ms Freeman to re-apply to be a magistrate again. He emphasised the severity of the 29 counts of dishonesty and fraud brought against her. However, if she was removed from office, she would never be able to apply to be a magistrate ever again.

The executive body of the Magistrates Commission had come to a unanimous decision that the resignation could not be accepted. The reasons for the refusal would be provided to Ms Freeman tomorrow morning.

The Commission had requested the two Houses to deliberate on the removal of Ms Freeman, based on the reports provided.

If Ms Freeman challenged the decision, it was in the domain of the Commission or the Department to accept, or not accept, her resignation. Since the Department did not accept, there was nothing that Ms Freeman could do.

Mr Meijer said that upon receiving Ms Freeman’s resignation, he felt compelled to share it and discuss it with the Committees.

He clarified the financial implications for Ms Freeman. Had her resignation been approved, she would be entitled to accrued paid leave to be paid out, as well as a pension. If she was removed, she would not be entitled to accrued leave nor a pension. 

Follow-up questions

Ms Mofokeng accepted the Commission’s explanation. She stressed that the process must make sure that the person involved got a receipt. She added that Parliament, being an oversight body, was there to correct things. In this case, Ms Freeman had certainly taken advantage of the live broadcast of the virtual meetings to obtain information to her advantage.

Mr Mthethwa supported the Magistrates Commission’s decision that she must be dismissed.

Mr Mmoiemang wanted to know why the reasons for refusing Ms Freeman’s resignation would be communicated to her only tomorrow.

Adv Moosa explained that as the Commission had received her resignation only last week, this issue had to be communicated to the cluster head, and then come to the Magistrates Commission to decide. The resolution had been taken this morning.

The Chairperson accepted Mr Meijer’s explanation, and believed that he had acted in good faith. He emphasised the need for the Commission to improve its operation. He agreed that Ms Freeman might have been watching TV, which explained why her resignation letter had been sent at that precise time. The chances of Ms Freeman succeeding in bringing up a case were very slim, as the grounds which she used in her resignation were not in good faith. The Committee needed to bring finality to this matter.

He announced that the report on the Magistrates Commission on the confirmation of suspension/removal from office of Ms L B Freeman, a Senior Magistrate, Mossel Bay, in terms of section 13(4)(b) of the Magistrates Act, 1993 (No 90 of 1993), was adopted.

The Committee resolved to recommend that the National Assembly should not to restore Ms Freeman to the position of magistrate.

Provisional suspension of three magistrate officials

Advocate Moosa briefed Committees on the progress reports dated 31 Jamuary 2020, involving the provisional suspension from office of three officials in terms of section 13(3)(f) of the Magistrates Act of 1993. The officials were:

  • Ms J F van Schalkwyk, Chief Magistrate at Kempton Park;
  • Mr E S Nzimande, Regional Court President, Kwazulu-Natal;
  • Mr M D Hinxa, the Chief Magistrate, Bloemfontein

In the case of Ms Van Schalkwyk, when the matter was processed on 30 September 2019, she had concluded the first cross-examination during the session. The enquiry was postponed to 13 January and to 24 January 2020. A further eight witnesses had been called upon for cross examination. Thereafter, the Magistrates Commission had closed its case.  Ms Van Schalkwyk had then elected not to testify in this matter, and had called six witnesses to testify in her defence. The enquiry had run out of time and was then postponed to 14 to 16 April. She had also indicated her wish to call a further three witnesses. Due to the COVID-19 lockdown restrictions, the matter could not proceed. The Magistrate Commission had then consulted all involved parties and resolved to postpone the inquiry to 20 to 24 July 2020.

In the matter of Mr Nzimande, the Magistrates Commission had indicated its wish for assistance from the Office of the National Director of Prosecutions (NDP), for a state prosecutor or advocate to lead evidence in this matter. Adv Sankar, from the NDP, had been duly appointed to assist the Commission, and this had been confirmed. On 24 January 2020, the national director of Public Prosecutions, Ms S Batohi, had confirmed the release of Adv Sankar to lead the inquiry of Mr Nzimande’s misconduct. A pre-trial conference had been agreed on with Mr Nzimande’s legal team in order to sift out unnecessary matters. The COVID-19 regulations had not allowed the pre-trial conference to happen, but it would be set up soon.

The matter of Mr Hinxa had already proceeded, and the misconduct inquiry was ongoing at the moment. The inquiry had commenced in February 2019, and had been postponed to 6 June 2019. The matter had then proceeded, but was postponed again to 30 March 2020, and then to 8 April. Unfortunately, the postponement date fell within the COVID-19 period, and the inquiry was not able to continue under the circumstances. After consultation with the involved parties, the dates were scheduled from 7 to 11 September, from 26 to 30 October, as well as from 23 to 27 November 2020.

On behalf of the Magistrates Commission, Adv Moosa affirmed that the Commission was aware of the pending matters and would try by all means to finalise them.


Ms N Maseko-Jele (ANC) expressed her concern at the corruption that was emerging in the judicial system. She wanted to know if a full report could be provided to the Committee on all the cases which the Commission was investigating. She believed that these corruption cases were taking the country backwards, and the possible backlogs in dealing with cases were only making matters worse.  She asked the Commission to explain the exact impact of COVID-19 on the court system.

Mr H Mohamed (ANC) sought clarity on Ms Van Schalkwyk’s case. He wanted to know the dates when the investigation had started, and when it had been concluded. He asked when the misconduct hearing had started, as well as whether the presiding officers at the hearing had been from Parliament or from the Magistrates Commission itself.

Magistrates Commission’s response

Mr Meijer said the Commission was dealing with a number of misconduct cases that had not been tabled to Parliament. In some of those cases, magistrates were not suspended from office because the charges brought against them were considered to be not so serious. However, all the information would be provided to the Committee in the Commission’s annual report.

He assured the Select Committee that the Commission received complaints on a daily basis. Upon receiving complaints, the Commission had to present the matters to the ethics committees, which would then have to decide whether to conduct preliminary investigations and misconduct enquiries.

It would be very difficult to provide an exact figure of how many of those cases there were currently, but he assured the Committee that the Commission did not have any backlog in the handling of complaints.

He said that the case involving Ms Van Schalkwyk had begun with a preliminary investigation in 2012/2013, and she had been charged in 2013. She had then taken the Commission’s decision to the High Court in Pretoria. The outcome was that the High Court had dismissed her case. She had then appealed to the Supreme Court of Appeal. It was only after that that it had begun the proceeding of Ms Van Schalkwyk’s misconduct enquiry at the beginning of 2019.

Adv Moosa added that at the meeting on 17 June 2020, some Members of the Committee had requested the Magistrates Commission to provide it with reports on the other sub-committees’ activities. The Commission had then resolved that moving forward, it would provide a quarterly report on its sub-committees in the spirit of being transparent and being accountable to Parliament.

Co-chairperson Shaikh expressed her appreciation, and said that a meeting had been arranged between the chairperson of the Magistrates Commission and the Committee to discuss some of the identified issues.

She permitted the Commission’s delegation to withdraw from the meeting, so the Select Committee could adopt the reports.

She announced that the Select Committee on Security and Justice, having considered the progress reports, recommends the Council wait for the conclusion of the disciplinary process, or future progress reports, to further consider the matter.

Having considered the report on the confirmation of suspension/removal from office of Ms L B Freeman, a Senior Magistrate, Mossel Bay, tabled in terms of section 13(4)(b) of the Magistrates Act, 1993 (No 90 of 1993), the Select Committee recommends that the National Council of Provinces resolve not to restore Ms Freeman to the office of Magistrate.

The meeting was adjourned.


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