ATC101116: Report on Provisional suspension from office of Magistrate MK Chauke
Report of the Portfolio Committee on Justice and Constitutional Development on the lifting of the provisional suspension from office of Magistrate MK Chauke, dated 16 November 2010:
The Portfolio Committee on Justice and Constitutional Development, having considered the report on the uplifting of the provisional suspension of Magistrate MK Chauke, a Magistrate at Pretoria, reports as follows:
1) Mr Chauke appeared before the Specialised Commercial Crime Court on a charge of theft of a number of containers from Vitamine Laboratories on 18 September 2004.
2) On 8 November 2007, Mr Chauke, his wife and son were convicted of contravening section 37 of the General Laws Amendment Act 62 of 1955. They were all sentenced to 12 months imprisonment, suspended for a period of 5 years on condition that they are not again convicted of contravening section 37 of the Act during the period of suspension.
3) The Minister, on the advice of the Magistrates Commission, provisionally suspended Mr Chauke from office with effect from 5 February 2010. The suspension was recommended based on three charges of misconduct namely, the criminal conviction above; contravening the Regulations for Judicial Officers in the Lower Courts, 1994; and contravening the Code of Conduct for Magistrates. The suspension was confirmed by both Houses of Parliament on 1 and 4 June 2010, respectively.
4) On 20 November 2007, Mr Chauke’s attorneys advised the Commission that they were instructed to appeal against his criminal conviction. The appeal was heard on 15 June 2010. Mr Chauke’s conviction and sentence were set aside. The Commission, after studying the judgement, decided not to proceed with the misconduct charge based on the criminal charge.
5) The Commission proceeded with a misconduct inquiry in respect of the remaining two charges of misconduct. It was alleged that during the period October 2002 to July 2004, during and after official office hours, Mr Chauke retained and forwarded e-mails to other persons containing explicit pornographic material on and from a computer supplied to him by the Department of Justice and Constitutional Development for the exclusive use in the execution of his official duties as a magistrate. It was also alleged that he used the computer to access internet sites containing explicit pornographic or obscene material.
6) After considering the evidence placed before him at the inquiry, the Presiding Officer found Mr Chauke guilty in respect of failing to act at all times in a manner which upholds and promotes the good name, dignity and esteem of the office of a magistrate and the administration of justice. He was acquitted on the other count in that it was duplication. The Presiding Officer postponed the imposition of a sanction for a period of 12 months on certain conditions in terms of regulation 26(17)(a) of the Regulations for Judicial Officers in the Lower Courts, 1994.
7) Since the criminal conviction of theft, which formed the basis of Mr Chauke’s provisional suspension, has been set aside by the High Court, Mr Chauke’s further provisional suspension is not justified. The nature and seriousness of the charge of misconduct on which he was found guilty does not warrant his provisional suspension either, and the sentence imposed does not impact on his fitness to hold office.
8) As the basis for Mr Chauke’s provisional suspension fell away, there is no reason to uphold his provisional suspension.
Having considered the report on the lifting of the provisional suspension of Magistrate MK Chauke, the Committee recommends that the National Assembly confirms the lifting of the provisional suspension.
Report to be considered.
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