Constitution Twelfth Amendment Bill: Final Mandates; Suspension of Magistrates

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
12 December 2005
CONSTITUTION TWELFTH AMENDMENT BILL: FINAL MANDATES; SUSPENSION OF MAGISTRATES

Chairperson: Kgoshi L Mokoena (ANC, Limpopo)

Documents handed out:
Final Mandates on Bill (except Mpumalanga) [see Appendix]
Gauteng Final Mandate
Report by the Minister of Justice and Constitutional Development: Provisional Suspension of Magistrate K Suliman from Office with Remuneration
Report by the Minister of Justice and Constitutional Development: Provisional Suspension of Magistrate I Morake from Office with Remuneration

SUMMARY
The Gauteng representative began by providing an update to the Committee on the developments that had occurred in the Gauteng Legislature around the Constitution Twelfth Amendment Bill. It was noted that the Gauteng Province would be voting in favour of the Amendment Bill. This was due to the fact that the Gauteng government had brokered a deal with the North-West government and the National government to ensure that service delivery standards would be maintained in Merafong, once it had been relocated to the North-West Province. Added to this, Gauteng was voting in favour of the Bill to avoid a possible constitutional crisis. Following this, the provinces presented their final mandates. All the nine provinces indicated that they supported the Constitution Twelfth Amendment Bill.

The Magistrates’ Commission briefed the Committee on the Reports that the Minister had produced, which recommended that Magistrate K Suliman and Magistrate I Morake be provisionally suspended with remuneration, pending the outcome of their cases. These recommendations had arisen because Magistrate K Suliman had been accused of sexual harassment and indecent assault, while Magistrate I Morake had been accused of theft. After discussing the issues surrounding Magistrates Suliman and Morake, the Committee decided to support the provisional suspensions of these two magistrates with remuneration.

MINUTES
The Chairperson began the meeting by noting the presence of the Department of Provincial and Local Government, the Department of Justice and Constitutional Development, the South African Local Government Association, and representative from the State Law Advisor.

The Chairperson stated that during the last Committee meeting, on the negotiating mandates, the Gauteng representatives had raised various concerns around the Constitution Twelfth Amendment Bill. As a result, he indicated that before the provinces presented their final mandates, the Gauteng representatives would be providing an update on the developments that had taken place in the Gauteng Legislature around the Bill.

Mr S Shiceka (ANC, Gauteng) stated that during the last Committee meeting, the Gauteng Province had indicated that it believed that the Merafong Municipality should remain in Gauteng. Nonetheless, the Gauteng Province had signalled that it was willing to negotiate around the Merafong question. Subsequently, there had been discussions between the Gauteng Province and the various other provinces around the issue of Merafong. During these discussions, two main issues had been dealt with, which were:
- The Merafong community’s concerns about the impact that the proposed relocation of Merafong would have on service delivery. In order to address the Merafong community’s concerns, the Gauteng government had brokered a deal with the North-West government and the national government to ensure that services would not be affected in Merafong when it was relocated to the North-West Province. Indeed, a fund would be created to ensure that the standards of service delivery in Merafong would be maintained once it was relocated. The North-West and Gauteng premiers had also agreed to be involved in ensuring that the service delivery standards in Merafong would be maintained. In the light of these assurances, the Gauteng Legislature had decided to support the Bill.
- The fact that there would be a constitutional crisis if the Gauteng Legislature failed to support the Bill. This was due to the reality that the Bill could not be passed by the National Council of Provinces if it was not supported by Gauteng. This would mean that the Bill would have to be redrafted and reconsidered, in a new form, by the National Assembly. This would mean that the elections would have to be delayed. The Gauteng Province, therefore, came to the conclusion that it needed to support the Bill in order to avoid a constitutional crisis.
Mr Shiceka concluded by stating that the Gauteng Province would support the Bill in the national interest.

Adv S Kholeng (Department of Provincial and Local Government: Legal Services) added that the Inter-Provincial Co-ordinating Committee would ensure that the agreements that had been brokered around Merafong, between the Gauteng Province and the North-West Province, would be enforced. As a result, there would not be decline in service standards in Merafong once it was relocated to the North-West Province.

Mr A Moseki (ANC, North-West) asked whether the agreement that had been entered into by the Gauteng Province and the North-West Province would only apply to those two provinces, or would it apply to all the nine provinces. Mr Shiceka responded that the situation around Merafong was unusual, in terms of the relocation of cross-boundary municipalities, because it had involved a dispute. Indeed, there had not been a dispute around the relocation of any of the other cross-boundary municipalities.

Adv Kholeng added that sound arrangements were in place to ensure that there would be a smooth transfer of assets, projects and programmes - relating to the affected cross-boundary municipalities - from all the releasing provinces to all the receiving provinces. However, in each affected area there were different challenges. As a result, the various affected provinces would have different action plans. However, the Inter-Provincial Co-ordinating Committees had been established to ensure that the transfer of the affected municipalities, from the releasing provinces to the receiving provinces, would be well ordered. This would ensure that service delivery would not be disrupted in any of the affected areas.

Mr J Le Roux (DA, Eastern Cape) observed that the Merafong community was still concerned about the implications around the relocation of their municipality to the North-West Province. Indeed, protest action by Merafong community members was ongoing. He asked whether the agreement between the Gauteng Province and the North-West Province would address the concerns of the Merafong community. Would it lead to an end to the protest action?

The Chairperson stated that he felt that Mr Le Roux’s question was unfair. Mr Shiceka added that people had a right to protest. In doing so, people were expressing their views. However, there were 16 cross-boundary municipalities in South Africa. It was only in Merafong where there had been protests around relocation. Hence, one could not delay the process due to only one municipality. He reiterated that the Gauteng Legislature had decided to act in the national interest. Leadership sometimes entailed taking unpopular decisions, which would allow the country to move forward.

Final Mandates of the Various Provinces on the Constitution Twelfth Amendment Bill
The Chairperson called for a motion of desirability. The Committee indicated that it was desirable to pass the Amendment Bill. The Chairperson enquired whether any Members had any comments or questions on the clauses of the Amendment Bill. None of the Members raised any questions.

Mr Le Roux commented that the DA would abstain from voting on the Amendment Bill in the meeting. The Chairperson responded that the provinces would be expressing their opinions on the Amendment Bill during the meeting; not the political parties. As a result, he pointed out that Mr Le Roux would be representing the Eastern Cape in the meeting.

The Chairperson called on the representatives of the various provinces to present their final mandates on the Constitution Amendment Bill.

Eastern Cape Province Final Mandate
Mr Le Roux stated that although the opposition parties had voted against the Bill; the majority of Members of the Eastern Legislature had voted in favour of the Amendment Bill. Hence, the Eastern Cape supported the Constitution Twelfth Amendment Bill.

Free State Province Final Mandate
Mr D Worth (DA, Free State) noted that the Free State Province voted in favour of the adopting the Amendment Bill.

Gauteng Province Final Mandate
Mr Shiceka stated that the Gauteng Province supported the Constitution Twelfth Amendment Bill.
.
KwaZulu-Natal Province Final Mandate
Mr C Ntuli (ANC, KwaZulu-Natal) noted that the KwaZulu-Natal Province supported the Bill.

Limpopo Province Final Mandate
It was noted that the Limpopo Province supported the Amendment Bill.

Mpumalanga Province Final Mandate
Ms F Nyanda (ANC, Mpumalanga) indicated that the Limpopo Province voted in favour of adopting the Amendment Bill.

Northern Cape Province Final Mandate
The Northern Cape Province approved and supported the Amendment Bill.

North-West Province Final Mandate
Mr Moseki noted that the North-West Province supported the Bill.

Western Cape Final Mandate
Mr N Mack (ANC, Western Cape) commented that the Western Cape Province supported the Constitution Twelfth Amendment Bill.

The Chairperson noted that the Committee had passed the Constitution Twelfth Amendment Bill, without any amendments.

The Chairperson commented that the Amendment Bill would be debated in the House on Wednesday. The Committee would inform the Chairperson of the National Council of Provinces that all the provinces had adopted and approved the Constitution Twelfth Amendment Bill.

Mr Shiceka, Mr Worth and Mr Mack commented that, in the future, the Executive and the Department’s needed to present Bills to Parliament on time. They stated that many of the problems that surrounded the Amendment Bill could have been avoided if it had been promptly presented to Parliament. Indeed, the Presidential Co-ordinating Committee had already decided in 2002 to abolish cross-boundary municipalities. Therefore, the Bill should have perhaps been presented more promptly. Mr Worth added that there were massive time constraints around the Bills, which were being fast-tracked. More time should be provided to Parliament to debate and deal with such Bills. The representatives from the Department of Justice and Constitutional Development noted the Members’ concerns.

Report by the Minister of Justice and Constitutional Development on the Provisional Suspension of Magistrate K Suliman with Remuneration: Briefing
Mr J Meijer (Magistrates’ Commission) commented that Magistrate K Suliman had been charged with misconduct, which related to a number of alleged incidences of sexual harassment, indecent assault and crimen injuria. Magistrate Suliman was due to appear before a disciplinary hearing on the 18^th and 19^th of January 2006. Added to this, Magistrate Suliman had appeared in court on criminal charges for one of the alleged incidences of indecent assault/crimen injuria. The criminal court was due to announce the verdict in January 2006.

Mr Meijer then provided details of the charges that had been levelled against Magistrate Suliman. It was alleged that Magistrate Suliman, on different occasions, sexually harassed and indecently assaulted different women who were working as clerks of the civil court. Indeed, during one these incidences it was alleged that Magistrate Suliman had exposed his erect penis to one of the complainants. It was also alleged that Magistrate Suliman had sexually harassed a member of the public. It was alleged that he asked this women about the details of her sexual life whilst she was in his office. In fact, all the alleged incidences had occurred in his office.

It was noted that the Minister’s Report recommended that Magistrate Suliman should be provisionally suspended, with pay, pending the outcome of the criminal case and other investigations.

Discussion
The Chairperson commented that the Committee needed to take a decision around whether Magistrate Suliman should be suspended with remuneration.

Mr Shiceka commented that the last time that the Committee met regarding Magistrate Suliman, it had discussed the possibility of transferring him to another area. Mr L Labuschagne replied that it was not practical to transfer Magistrate Suliman to another area. If he was transferred, instead of being provisionally suspended, the problem would not have been dealt with.

The Chairperson, Mr Shiceka, Mr Le Roux and Mr Nyanda noted that the alleged sexual harassment and incident assault cases against Magistrate Suliman were extremely serious. The situation was untenable, specifically in the light of the government’s fight against women and child abuse. Hence, Mr Shiceka, Ms Nyanda, and Mr Le Roux felt unequivocally that Magistrate Suliman should be suspended, with remuneration.

Mr Ntuli asked whether there were sufficient magistrates in Durban to take on the extra cases if Magistrate Suliman was provisionally suspend. Mr Meijer replied that he could not comment on whether there were sufficient magistrates to take on the extra cases. Only the Chief Magistrate of Durban would be in a position to answer the question. Nonetheless, Mr Meijer pointed out that Magistrate Suliman had already been provisionally suspended by the Minister in August 2005. As a result, the magistrates’ court in Durban was already functioning without the services of Magistrate Suliman. In fact, a relief support unit had been established.

Mr Moseki noted that the Committee should support Magistrate Suliman’s provisional suspension. However, Mr Moseki and Mr Ntuli stated that the Committee should be careful not to pass judgement on his guilt or innocence. It was for the courts and the Department to decide on whether Magistrate Suliman was guilty, or not, of the alleged incidences of sexual harassment and indecent assault. Hence, the Committee could condemn sexual abuse, but it should not prejudge Magistrate Suliman’s case.

The Chairperson acknowledged that Magistrate Suliman had not yet been found guilty. However, public representatives needed to condemn any form of women abuse, especially if it had been committed by a person in a position of authority. Public representatives were tasked with protecting women because they were vulnerable to abuse.

Mr Mack enquired whether any evidence had been found during the investigations, which would conclusively support the recommendation that Magistrate Suliman should be suspended. Mr Meijer responded that in the first charge, which related to Magistrate Suliman allegedly exposing his erect penis to one of the complainants, it was the complaint’s word against the word of Magistrate Suliman. However, during the investigation of the case, four other women came forward and testified that Magistrate Suliman had also sexually harassed them.

Mr Mack asked whether the investigations had been completed. Mr Meijer replied that the Departmental hearing on the first charge, relating to Magistrates Suliman’s exposure, had been postponed pending the verdict of the criminal case. Indeed, the criminal case verdict was due in January 2006. Mr Suliman had also been charged with further incidences, which related to the alleged sexual harassment of the four other women. In terms of these cases, the Department was awaiting a written reply to the charges from Magistrate Suliman. The hearings relating to these other alleged incidences had been scheduled for the 18^th and 19^th of January 2006.

The Chairperson proposed that the Committee should support the suspension of Magistrate Suliman. The Members concurred with the Chairperson’s sentiments. Hence, the Committee approved the provisional suspension of Magistrate Suliman.

Report by the Minister of Justice and Constitutional Development on the Provisional Suspension of Magistrate I Morake from Office with Remuneration
Mr A Louw (Magistrates’ Commission) noted that Magistrate Morake was the magistrate and office head in Lichtenburg. Magistrate Morake had been charged by the Department due to three alleged incidences of theft. These incidences allegedly involved the theft of monies, which had been handed to him on three occasions by members of the public. The amounts involved were R 500, R 1 250 and R 5 000 respectively. The first incident occurred in 2003 and revolved around a dispute between two individuals. Magistrate Morake had been involved in mediating this dispute. He had ordered one of the individuals, involved in the dispute, to pay the other R 500 in compensation. The individual delivered the R 500 to Magistrate Morake. However, Magistrate Morake had never forwarded the R 500 onto the individual that was to receive it as compensation. The second incident, involving the R 5 000, revolved around a separation case that Magistrate Morake had ruled on. He had ordered one partner to pay the other partner R 5 000 as a settlement. Mr Morake requested that the R 5 000 be forwarded to him, and he had stated that he would in turn forward it onto the rightful recipient. In the interim, the two partners had reconciled. However, Magistrate Morake never forwarded on the R 5 000. Indeed, the R 5 000 had disappeared. The third incident occurred in September 2005, when Magistrate Morake requested an individual to hand over R 1 250. Magistrate Morake had told the individual that the R 1 250 was for a legal representative who would assist the individual in a case, which they were involved in. This amount also disappeared and no legal representative was ever appointed. Magistrate Morake had also been criminally charged with theft for allegedly steeling the R 500, R 5 000 and R 1 250. Mr Louw noted that the criminal court was due to rule on these cases on the 12^th of December 2005.

It was noted that the Commission recommended that Magistrate Morake be provisionally suspended with pay.

Discussion
The Chairperson requested that the Committee consider the Report by the Minister, which had recommended that Magistrate Morake be suspended with remuneration.

Mr Moseki, Mr Le Roux and Mr Shiceka indicated that the Committee should approve the provisional suspension of Mr Morake. Officials should not be abusing their positions of authority. The Committee, therefore, accepted the recommendation that Magistrate Morake be suspended.

The meeting was adjourned.

Appendix: Final Provincial Mandates (except Mpumalanga)

EASTERN CAPE PROVINCIAL LEGISLATURE