Suspension/removal/upliftment of Magistrates from office & Progress Reports

Meeting report

The Chairperson welcomed Adv Naome Manaka, Chairperson of the Magistrate Commission's Ethics Committee, who was appearing before the Select Committee for the first time. Mr Justice Finger, Secretary of the Magistrates Commission, was also on the platform.

Suspension/removal from office: Mr HC Raath

Adv Manaka said that Mr Raath had been found guilty of misconduct. He was running a Ponzi scheme in that he had invited people to invest in a scheme with the promise that there would be investment returns for them, but they did not receive their money in the end. He had been found guilty because he had abused his office. The complainants had all stated that if it were not for Mr Raath's position in the Office, they would not have invested their money. The Magistrates Commission recommended to the Select Committee the removal of Mr Raath from the Office.

She pointed out that Mr Raath had been found guilty in 2021, and the recommendation had also been made in the same year. Two to three years had lapsed. The Commission realised the error of not dealing with matters swiftly and was taking steps to improve.

The Chairperson agreed with the view on the delay and called it unacceptable. Since Adv Manaka was new to the position, she asked her to indicate what improvements the Commission had used to expedite those matters.

Adv Manaka concurred that the delay was concerning, and there was no way that the Commission could justify that it should take two years to deal with the matter. One factor contributing to the delay was the lack of capacity. The Commission had been running without a secretary. The Acting Secretary of the Commission was also the Secretary of the Ethics Committee, so one person had to do a double load of work. There has also been a vast increase in the number of reported cases. Perhaps this was a good signal, indicating that the public may have more confidence in the Commission.

The improvement measures were all related to how the Commission channelled complaints, dealt with and prioritised them. Even when matters were not within the Commission’s control, it was now making follow-up calls from persons leading evidence. Complaints that were being prioritised included matters of a sexual nature, ill health, and non-performing magistrates. The Commission had recently started compiling a standard operating procedure to deal with matters and allocating roles to different role players.

When she commenced her duty as the chairperson, the Commission had started a clean-up campaign to deal with matters that could be disposed of. Those measures had yielded positive outcomes. The Ethics Committee held meetings monthly. Until March, the Commission had been having two to three-hour meetings on a weekly basis to expedite the approval of charge sheets related to the charges. The Commission dealt with about ten charge sheets. She and the secretary had created a database of magistrates who would be appointed as persons leading evidence. She assured the Committee that the Commission was working tirelessly to expedite those issues in order to restore its integrity.

Adv Manaka highlighted one instance that showed improvement. There had been a charge against the magistrate, and the whole process, from the magistrate's arrest to the commencement of the misconduct hearing, had taken only two months. That case was about to be concluded.

The Chairperson asked for specific reasons for the delays, especially regarding Mr Raath.

Adv Manaka responded that the structure of the Commission was special, in the sense that the committee members were not employees of the Commission. Therefore, in order to understand a matter, the committee members had to rely on the accounts of the ethics division, which consisted of members who were full-time employees of the Commission. She said that it was likely that the Raath matter had just fallen off the ladder and was not placed before the ethics committee once a decision had been made. The other factor contributing to the delay could be the ethics committee's approval. Once a decision was made, it had to be debated in the committee.

Suspension/removal from office: Mr K Maharaj, Additional Magistrate, Caledon

Mr Maharaj suffered from brain injuries, so the Commission found that he could not discharge his duties as a magistrate. Mr Maharaj agreed with that view. He had a stroke in February 2024 and has been unable to return to work ever since. All the latest medical reports showed that he could not perform his duties.

Ms A Maleka (ANC, Mpumalanga) asked why it had taken the Commission one year and eight months to serve the letter to Mr Maharaj. The Commission had informed him of its intended investigation in writing on 24 November 2021. Mr Maharaj had refused to accept personal delivery of the notice. A revised letter was served to him on 8 May 2023.

Adv Manaka explained that most of the delays were related to capacity issues, and how the ethics committee conducted its work. The length of those meetings was inadequate to cover all the agenda items. The filing system which the Commission used was confusing. For instance, a matter could be reported in 2019 and registered as 01 for 2019, for argument’s sake. When that matter started to be prosecuted, it moved from the new matter register and went to other registers, such as the 662 register for old matters. The process omits the original references once actions have been taken from registers 661 to 662. Once those matters were recorded in the new register, the readers of those matters got a new reference number, which may incorrectly show that those matters were new. That issue was being addressed. The Maharaj matter would have fallen under this scenario. A new system had been adopted, where the committee did not deal with new matters but rather with matters with recommendations such as removal due to ill health, suspension due to misconduct, etc. Those were the matters that would affect the day-to-day running of the court and the department's finances.

Suspension/removal from office: Mr M D Hinxa, Chief Magistrate, Bloemfontein

Adv Manaka highlighted that there had been a long delay in the matter of Magistrate Hinxa. This has also drawn concerns from Members of Parliament in other committees.

Mr Hinxa had been found guilty of making sexual advances towards the complainant. The presiding officer of the misconduct enquiry had recommended that he be removed from office.

The committee had engaged in a debate over the interpretation of the Magistrates Act and the commission's role in endorsing the recommended sanction, leading to a prolonged legal discussion and eventual resolution.

When the matter was referred to the Commission, it was faced with the option of whether to endorse the sanction and recommend to the Minister that the removal from the Office be confirmed. The meeting also covered the ethics committee's decision to commission a quality assurance report on Ms Govender's judgments to ensure justice was served. The report was expected by the end of May.

Mr G Michalakis (DA, Free State) noted the egregious nature of the sexual charges and was resolute that no such person should be allowed to serve in the justice system. He supported the Commission’s decision and asked Adv Manaka how she justified her vote against the Commission's recommendation to remove Mr Hinxa.

The Chairperson expressed her concern regarding the charge in relation to the gender-based violence (GBV) issue, which pervaded society at large.

Adv Manaka denied that she had voted against the decision. A person had voted against that decision, but that was not her. The argument she had put forward within the ethics committee concerned the legal role, as premised by the Act. As the chairperson, she had been firm that the Commission should act within the law's ambit. There was no debate on the sanction. The merit of the evidence to support the conviction had delayed the process.

Mr R Badenhorst (DA, Western Cape) said the magistrate was found guilty of the two charges in 2021 and asked if he had still received his full pay while the litigation process was underway. He sought clarity on why a person who was found guilty of misconduct would still receive a full salary.

Adv Manaka pointed out that the whole process was not completed until the magistrate’s removal was confirmed by Parliament, which was why the Act contemplated that the process should be completed as soon as possible. Unless the Commission delays the matter, a recommendation to withhold salaries can be made. Until that happened, the salaries would be paid continuously.

Suspension/removal from office: Ms NB Dyeyi, Magistrate, Fauresmith

Magistrate Dyeyi had been involved in an accident, following which she suffered from brain injuries. Occupational therapists, after consultations, had recommended that Magistrate Dyeyi should be removed from office owing to ill health.

The Commission requested that the removal be considered by the Committee.

Provisional suspension from office: Ms R Govender, District Court Magistrate, Limpopo

Ms Govender was being placed on provisional suspension due to dishonesty. She had had an accused appearing before her, and the matter had been postponed. After that, she endorsed the charge sheet and acquitted the accused in the absence of the state or the accused. The matter was taken on special review. The judges had queried Ms Govender’s endorsement of the charge sheet. Ms Govender had misled the judges by saying there had been a full trial, but there was not.

The matter was now before the Select Committee to approve and confirm the provisional suspension of Magistrate Govender.

Mr Finger indicated that the Commission was moving speedily with some of those matters. Disciplinary hearings had been held, and there was already a finding of guilt against Ms Govender, and the sanction would be in June this year.

The Chairperson asked if any other matters or complaints had been looked into because it had taken two years for this matter to be brought to Parliament.

Adv Manaka pointed out that Ms Govender did not hand over the work laptop after she was suspended. The Commission was now implementing a ruling that government assets such as laptops must be returned when they were suspended. Since Ms Govender had refused to return the laptop, the Commission decided to open a criminal case at the police. A letter had been sent to Ms Govender, and the laptop was returned on the following day, but there were no other cases involving Ms Govender before the ethics committee.

Mr Finger added that the ethics committee had resolved to do quality assurance work on Ms Govender’s judgements during her time in office. That report will be finalised by the end of May.

Provisional suspension from office: Mr AAK Singh, Senior Magistrate, Pietermaritzburg

Adv Manaka said the charges against Mr Singh included an undue relationship with a political figure and members of the Crime Intelligence Unit and threatening two journalists, leading to his provisional suspension pending the outcome of the misconduct processes.

The committee had been tasked with confirming the provisional suspension, and the discussion highlighted the steps being taken to expedite matters and address the various complaints against Mr Singh dating back to 2015.

This matter was one of those that took a long time to process. Since she took over the office, she observed that although those were complaints against one magistrate, they had been dealt with separately by different ethics committee members. One of the measures was to consolidate all the complaints related to one magistrate so that one person could investigate them. Mr Singh’s matter had undergone such a process.

Upliftment of provisional suspension from office: Mr K Bodlani, Regional Magistrate, Umlazi

Mr Bodlani was on provisional suspension. Whilst he was on provisional suspension, a judgment called upon him and the prosecutor to reconstruct a certain judgment. The record had not been reconstructed because Mr Bodlani needed an official correspondence to instruct him to reconstruct the record. The Commission, therefore, recommended that the Committee uplift Mr Bodlani's suspension for one week -- five working days -- to finish the work, after which the suspension would ensue again.

The Chairperson sought assurance from Adv Manaka that the matter would be sufficiently dealt with in one week.

Adv Manaka estimated that the reconstruction portion would not take more than two days. She also suggested that the upliftment should be made clear that it was solely for the reconstruction of the record, and nothing else.

Progress reports on provisionally suspended magistrates

The Chairperson indicated that regarding s33 of the Magistrate Act, the Commission was obligated to report to the Commission once every quarter on provisionally suspended magistrates. Still, there was a gap in reporting from 18 August 2021 to 28 November 2023. She asked for an explanation.

Adv Manaka replied that this was the first time she had come to report to the Committee on progress reports since she commenced her duties. She believed it did not help to report to the Select Committee on the same thing over and over again. She took responsibility for the delay since she took over the office. She always felt that reports should be informative, give progress, and not repeat what had been reported previously.

Provisionally suspended magistrate: Mr D Nair, Chief Magistrate Pretoria

The charges against Mr Nair were related to the period in 2016 when he accepted a specific dispensation from Bosasa for an approximate value of R200 000. He had been suspended from office on 24 February 2022, on full salary. The National Assembly (NA) and the National Council of Provinces (NCOP) confirmed the provisional suspension on 12 March and 20 June 2022, respectively. In this case, two regional court magistrates were appointed to lead evidence and one to preside over the misconduct. The matter had commenced on 30 October 2022. The enquiry commenced on 29 March 2021, and Mr Nair briefed a Senior Counsel who had raised an objection. There was a postponement, and the hearing resumed on 7 June 2021. The enquiry was again postponed to 23 November 2021. There was another request that the presiding officer should be a judge of the High Court. Both parties later agreed that the presiding officer was competent to preside over the misconduct hearing. The matter could not proceed in November 2021, and was postponed for oral argument in January 2022. A point in limine was raised, and the matter was postponed to March 2022. On 31 March 2022, the presiding officer dismissed the point in limine and postponed the matter to 4, 5 and 11 July 2022 to accommodate the presiding officer for the leading of evidence. The enquiry was postponed to 9 December 2022 for further evidence. The Commission’s third witness presented the evidence on 6 December 2022 and was cross-examined on 6 and 7 December. The matter was postponed to 10 March 2023 for further evidence.

The matter did not proceed on that day due to the unexpected unavailability of the presiding officer. The matter was then postponed to 5 July 2023. On 19 September 2023, he indicated that he preferred presiding during the recess of the High Court. The Counsel for Mr Nair concluded the cross-examination of the third witness on 5 July 2023. The person to lead the evidence (PLE) applied for her next witness to testify virtually, and for the enquiry to be conducted at the Commission’s office due to ill-health. There was an objection from Mr Nair’s attorney, and the presiding officer had requested the PLE to provide the evidence in writing. It was filed on 31 July 2023. The enquiry was postponed to September 2023 for further evidence. On 14 September 2023, the PLE advised that due to Mr Nair’s late enquiry on this issue, the attorney to the witnesses had indicated that they had not been able to obtain instructions from him. The venue was also no longer available. There was no time to source another venue within such a short time period, so the matter was postponed to 5 April 2024. Due to the presiding officer’s non-availability, the matter was now postponed to 5 July 2024.

Mr Finger highlighted the two factors which had caused the delay:

• the availability of the judge, who could assist only during a recess;
• the constant raising of points in limine, which involved back and forth rulings and caused further delays.

Provisionally suspended magistrate: Mr ES Nzimande, Regional Court President KwaZulu-Natal

There was an issue related to either the presiding officer or the persons leading the evidence in Mr Nzimande’s case. The Commission had agreed that a judge should be appointed as the presiding officer and that the persons leading the evidence should be outsourced to Counsel. There was a bit of an administrative glitch in appointing a judge as the presiding officer, which took a little while. After a judge was appointed, and a Senior Counsel and a Junior Counsel were appointed to lead evidence, there had been a bit of a delay in reporting to the Commission on what they were doing. The Commission had called both Counsels to brief it on the progress. It then appeared that little progress had been made in prosecuting this matter. A decision was made to remove the Counsels in order to save costs. The senior counsel was removed, and a second junior counsel was appointed to assist in leading the evidence. When the two Counsels were appointed, there was a dispute over seniority, which had affected the progress of the matter. Then, at the beginning of 2024, the Commission had decided that another Senior Counsel should be appointed. The senior counsel was appointed this year, a pre-trial was held, and the case was postponed for a hearing. Three witnesses had been led last week, and the third witness was on the stand for cross-examination. The matter had been postponed to 10 to 14 June for further cross-examination of witnesses.  

Provisionally suspended magistrate: Mr LT Mkansi, Regional Magistrate, Bloemfontein

Magistrate Mkansi had consistently brought applications to court to interdict the entire process. He launched a review application, which was not prosecuted in 2022. Subsequent to that, the committee had considered the matter and noted a pattern -- that Mr Mkansi would bring an application to court, and then withdraw. The committee then decided that since Mr Mkansi was suspended on full salary, it would write to him and point out that the salary may be withheld pending finalisation of the matter. Mr Mkansi had replied and indicated that he was not the sole cause of the delay. The PLE had been indisposed due to ill health on one or two occasions, so the delay could not be blamed on him. He had also since been criminally charged, and his criminal case had been heard in the Bloemfontein Court from 19 to 21 February 2021.

The Commission’s position was that the matter should proceed, and the PLE should approach the presiding officer with a date for a further hearing. The PLE had indicated that their availability was around July 2024, and the trial would start in July.

The Chairperson commented that the provisional suspensions did have an actual impact on the fiscus. While explanations had been provided for those delays, the speedy resolutions of those matters were of interest to the Select Committee.

She encouraged the Commission to address those challenges much more quickly and noted the measures put in place. She hoped that those measures would bear fruit in due course. The issue of delay would be included in the Committee’s legacy report. She also urged the committee to present progress reports more timely in the future. The Select Committee would also include in its legacy report that engagement should take place between the Committee and the Chairperson of the Magistrates Commission.

Adoption of Minutes

The outstanding Committee minutes of 25 January, 14 February and 21 February 2024, were all duly adopted.

The adoption of the Committee reports on the Magistrates Commission and the Committee’s legacy report would take place at its next meeting.

The meeting was adjourned.