The following
report replaces the Report of the Select Committee on Security and Justice
which was published in the Announcements, Tablings and Committee Reports of 17
October 2014, on page 1371.
2. Report of the Select
Committee on Security and Justice on the Provisional Suspension from Office of MagistrateR M Malahlela,
dated 16 October 2014
1.
Introduction
The Select Committee on Security and Justice, having considered the
report on the provisional suspension from office of MagistrateMrsR
M Malahlela, an aspirant additional magistrate at Delmas, tabled by the Minister for Justice and Correctional
Services in terms of section 13(3)(b) of the Magistrates Act, 1993 (Act no 90
of 1993), reports as follows:
1.1. The Select Committee, on 17
September 2014, heard evidence from the representatives of the Magistrates
Commission (the Commission) concerning the matter of the provisional suspension
from office of MagistrateMrs R M Malahlela.
1.2. Mrs
Malahlela, an aspirant additional magistrate at the Delmas District Court received herappointment
to the lower court bench on 01 November 2004.
1.3. The
Commission did not approve her permanent appointment due to poor performance,
irregularities in her work, absenteeism, refusal to execute lawful orders,
major delays in judgments, failure to finalize matters and poor utilization of
court time. Her evaluation reports indicated that she is not a fit and proper
person for appointment as a magistrate.
2.
Background
2.1. On 25 May 2009, the Ethics Committee,
considered the alleged strained relationship between Mrs Malahlela
and her Judicial Head of Office. The Judicial Head of Office laid allegations
of poor performance; alleged misconduct and prejudice against Mrs Malahlela.
2.2. The
Ethics Committee resolved to convene meetings atthe Delmas Court between Mrs Malahlela
and her Judicial Head of Office to resolve the strained relationship instead of
charging Mrs Malahlela with misconduct. The Ethics
Committee scheduled two meetings with Mrs Malahlela
without any success.
2.3. On 30 September 2010, Mr C J Barnard, Chief
Magistrate and Head of the National Judicial Quality Assurance Office in
Pretoria laid further allegationsagainst Mrs Malahlela, allegingthat she wasabsent for considerable periods from work and could not satisfactorily
explain her absence.
2.4. The
Magistrates Commission indicated they were not satisfied that Mrs Malahlela was a fit and proper person for the appointmentas magistrate.
2.4.1. Medical
reports indicated that Mrs Malahlela suffered from
major depressive disorders and panic disorders. The psychiatric reports
indicated that her condition did not render her unfit for work, but that she
had to continue with monthly psychotherapy and medication.
2.4.2. A
report dated 18 October 2011 recommended that she does not have the capacity to
carry out her duties of office in an efficient manner due to continued ill
health.
2.4.3. The
Ethics Committee resolved on 1 December 2011 to refer the matter to the
Appointments Committee of the Commission to recommend to the Minister not to
appoint Mrs Malahlela on a permanent basis.
2.4.4. The
Commission's Executive Committee referred the matter back to the Ethics
Committee to consider whether the Ethics Committee should rather institute
misconduct charges against Mrs Malahlelaand request a
separate investigation in terms of Regulation 29 of the Regulations for
Judicial Officers in the Lower Courts, 1994 (the Regulations).
2.4.5. The
Ethics Committee requested a Judicial Quality Assurance Report on the judicial
work of the magistrate for consideration.
3.
Judicial
Quality Assurance Report
3.1. The
Judicial Quality Assurance Report covered the period 2010 to August 2012 and
raised the following concerns:
3.1.1. Mrs
Malahlela made mistakes in the Criminal Court that
were not in line with her experience on the bench and had a negative impact on
the right to a fair trial;
3.1.2. She
made mistakes in the Family Court that did not reflect her years of experience;
3.1.3. She
has a long outstanding debt for private phone calls made from the land line of
the office amounting to R30 000.00;
3.1.4. Various
complaints resulted in her allocation to the reception court;
3.1.5. Partly
heard matters prior to 2010 took years to finalize;
3.1.6. There
was a history of strained relations between Mrs Malahlela
and the local attorneys; prosecutors and administrative staff.
3.2. On
6 September 2012, the Ethics Committee resolved that it expose Mrs Malahlela to an additional six months of probation under
the guidance of a board mentor, namely the acting Judicial Head of Office.
3.3. The
Ethics Committee submitted the report to Mrs Malahlela
on 18 April 2013 for her comments. She responded to the report on 28 June 2013.
4.
Report
by the acting Judicial Head of Office
4.1. The
acting Judicial Head of Office reported thatMrs Malahlela was evaluated on her work done in the reception
court and reported the following:
4.1.1. The
magistrate, during the period of extended probation, was absent for 39 days; ie 31 days for vacation leave and 8 days for sick leave.
4.1.2. The
magistrate often arrived late for work.
4.1.3. The
statistics she provided raised many questions as to her productivity.
4.1.4. She
did not attend to circulars and official correspondence requiring a signature in
time.
4.1.5. She
did not finalise the traffic court roll on the allocated court day, amongst
other matters.
4.2. The
Commission received new allegations and complaintsagainst
Mrs Malahlela indicating mistakes made during court
judgments, absenteeism and non-compliance with deadlines.
4.3. A letter
from the acting Judicial Head of Office and the sub-cluster Head dated 20 May 2013
requested the Commission to consider whether Mrs Malahlela
is indeed a fit and proper person to be appointed as a magistrate.
4.4. The
Ethics Committee on 22 May 2013 agreedon the
following:
4.4.1. To
conduct a preliminary investigation in terms of Regulation 26(1) of the
Regulations to obtain evidence in order to determine whether there were any
grounds for a charge of misconduct against Mrs Malahlela;
and
4.4.2. To
investigate the feasibility of re-opening the previous four charges of
misconduct against her.
4.4.3. The
preliminary investigation report recommended charging Mrs Malahlela
with misconduct. The Commission, on 5 March 2014, served a charge sheet
comprising 29 counts of alleged misconduct on her.
4.4.4. On
18 June 2014, Mrs Malahlela filed a Notice of Motion
at the North Gauteng High Court applying for an order of the Court inter alia to declare the Commission's
decision to charge her with misconduct to be wrongful and unlawful. The court must still hear the application.
5.
Discussion
5.1. In
order to determine her provisional suspension from office pending the outcome
of the investigation and misconduct hearing, the Magistrates Commission
afforded Mrs Malahlela the opportunity to comment on
the desirability of the provisional suspension.
5.2. The
Magistrates Commission considered Mrs Malahlela’s
response dated 09 April 2014, and noted that she had filed a Notice of Motion
in the High Court. The Commission on 11 July 2014 resolved to recommend to the
Minister for Justice and Correctional Servicesthat he
provisionally suspend Mrs Malahlela from office in
terms of section 13(3)(a) of the Magistrates Act No 90 of 1993 (the Act),
pending the investigation and misconduct hearing into her fitness to hold
office.
5.3. The
Commission was of the view that the existing evidence against Mrs Malahlelawas of such a serious nature as to make it
inappropriate for her to perform the functions of a Magistrate whilst the Commission
investigated the allegations.The Commission noted
there was doubt for many years as to her fitness to hold the position of magistrate.
Her conduct in both her private and professional capacity reflected negatively
on her integrity.
6.
Committee recommendation
The Select Committee on Security and Justice, having
considered the report on the provisional suspension from office of MagistrateR M Malahlela, recommends that the
National Council of Provincesconfirm the provisional
suspension from office of Magistrate pending the
outcome of the investigation and misconduct hearing.
Report to be considered.