ATC110629: Report on Magistrates Commission, dated 29 June 2011, on progress made in respect of inquiries against magistrates who have been suspended from office
Report of the Portfolio Committee on Justice and Constitutional Development on the reports of the Magistrates Commission, dated 29 June 2011, on progress made in respect of inquiries against magistrates who have been suspended from office, dated 7 September 2011:
The Portfolio Committee on Justice and Constitutional Development, having considered the progress reports dated 29 June 2011 on the provisional suspensions from office of Magistrate C M Dumani, Graaff- Reinet; Magistrate D Jacobs, Clocolan; Magistrate LB Maruwa, Daveyton; Magistrate MT Masinga, Umlazi; Magistrate IWOM Morake, Lichtenburg; Magistrate FR Rambau, Polokwane; Magistrate L Skrenya, Cala notes their contents and reports further as follows:
1. The Magistrate’s Commission briefed the Committee on 11 August 2011 on its progress in respect of misconduct inquiries involving magistrates who have been provisionally suspended. The Commission is required, in terms of the Magistrates Act 90 of 1993, to submit these reports to Parliament every three months from the time of the provisional suspension (Paragraphs 2 – 8 contain a précis of each report).
2. Report of the Magistrates Commission, dated 29 June 2011, on progress made in respect of inquiries relating to the provisional suspension of Magistrate CM Dumani, Graaff-Reinet
2.1. Magistrate CM Dumani was found guilty in a disciplinary inquiry of misconduct relating to charges of sexual harassment. The recommendation, on 4 May 2010, was that Mr Dumani be removed from office.
2.2. At its meetings on 26 and 27 August 2010, the Magistrates Commission resolved to support the recommendation that Mr Dumani be removed from office on grounds of misconduct. The Commission advised the Minister of its recommendation on 2 September 2010. It also advised Mr Dumani, in writing, of its recommendation to the Minister.
2.3. On 13 September 2010, before the Minister could confirm the provisional suspension, Magistrate Dumani filed an application with the Registrar of the Eastern Cape High Court to interdict the Minister from taking any further action against him, pending the outcome of an application to review and set aside the Presiding Officer’s decision in the disciplinary action. The application was unopposed and, on 21 October 2010, Mr Dumani was granted the interdict.
2.4. The review application, however, is opposed. The matter was heard on 29 July 2011, but at the time that the Commission appeared before the Committee, judgement was reserved.
3. Report of the Magistrates Commission, dated 29 June 2011, on progress made in respect of inquiries relating to the provisional suspension of Magistrate D Jacobs, Clocolan
3.1. The Minister, on the advice of the Commission, provisionally suspended Mr Jacobs from office with effect from 30 March 2010. The National Assembly and the National Council of Provinces confirmed the provisional suspension on 1 and 4 June 2010.
3.2. On 25 May 2010, Mr Jacobs was charged with ten counts of misconduct.
3.3. The Commission then learnt that, on 16 July 2010, while on provisional suspension, Mr Jacobs was arrested and appeared before the Clocolan District Court on a charge of driving a vehicle under the influence of liquor. As a result, further charges of misconduct were added.
3.4. The misconduct inquiry against Mr Jacobs began on 6 August 2010 but was postponed, at his request, to 22 and 23 September 2010, for him to instruct counsel. On 22 September 2010, Mr Jacobs’ attorney advised the Presiding Officer that Mr Jacobs had abandoned his intention to instruct counsel. He would be represented by his attorney at the misconduct proceedings. Mr Jacobs denied the allegations but was prepared to make certain admissions. The defence further raised the point that Mr Jacobs suffered from Post Traumatic Stress Disorder and major depression resulting in him having developed a serious alcohol dependency. A clinical psychologist gave evidence on this point.
3.5. The misconduct inquiry was converted to an inquiry into Mr Jacobs’ capacity to carry out his duties of office efficiently. It continued on 18 April 2011, when the investigating officer found that Mr Jacobs did not have the capacity to carry out his duties of office efficiently.
3.6. The Commission resolved, in July 2011, to recommend that he be removed from office. (Mr Jacobs, however, has, in the meanwhile, filed a request with the Minister of Justice and Constitutional Development to allow him to vacate office on account of continued ill health. His application, in this regard, is still pending.)
4. Report of the Magistrates Commission, dated 29 June 2011, on progress made in respect of inquiries relating to the provisional suspension of Magistrate LB Maruwa, Daveyton
4.1. Mr Maruwa appeared on 24 August 2007 before the Springs Regional Court on eleven (11) counts of fraud and was convicted on all counts on 29 September 2009. He was sentenced, on 9 November 2009, to a fine of R5 000.00 or 12 months imprisonment. He appealed his criminal conviction and sentence. The judges on appeal did not give judgment on 3 March 2011. Instead, the matter was referred to a full bench of the North Gauteng High Court, Pretoria. The appeal was to be heard on Monday 25 July 2011.
4.2. On 11 December 2009, the Commission charged Mr Maruwa with eleven (11) counts of misconduct and, on 5 March 2010, a notice containing the allegations against him was served on him.
4.3. On 10 February 2010, the Minister provisionally suspended Mr Maruwa. The National Assembly and the National Council of Provinces confirmed the provisional suspension on 1 and 4 June 2010 respectively.
4.4. The misconduct inquiry commenced on 4 June 2010 but was postponed indefinitely pending the outcome of the criminal matter on appeal.
5. Progress report, dated 29 June 2011, on the provisional suspension of Magistrate MT Masinga, Umlazi
5.1. On 19 March 2009, Mr Masinga appeared in the Durban Magistrate’s Court on a charge of contravening the Domestic Violence Act 116 of 1998. The criminal proceedings were initially postponed to 14 April 2009. The criminal case was then transferred to the Regional Court, Durban, where Mr Masinga appeared on additional charges of attempted murder and two counts of assault.
5.2. On 23 May 2011, Mr Masinga was convicted on a charge of attempted murder and the case was remanded to 12 August 2011 for a pre-sentence report.
5.3. On the 3 February 2010, the Minister of Justice and Constitutional Development, on the advice of the Magistrates Commission, provisionally suspended Mr Masinga from office. The provisional suspension was confirmed by both the National Assembly and the National Council of Provinces on 1 and 4 June 2010 respectively.
5.4. On 8 February 2010, the Commission charged Mr Masinga with three (3) counts of misconduct. The Commission was informed, in writing, on 2 March 2010, that NEHAWU would act on Mr Masinga’s behalf. The misconduct inquiry was set down for 26 August 2010. NEHAWU, acting on behalf of Mr Masinga, requested a postponement to appoint a legal representative. They were also instructed to argue that the disciplinary hearing should not proceed until the criminal case against Mr Masinga was finalised. The inquiry was postponed to 21 October 2010 but the representative of NEHAWU was absent on the day. The Presiding Officer then postponed the proceedings to 4 February 2011 for Mr Masinga to obtain finality in respect of legal representation. Neither Mr Masinga, nor the representative of NEHAWU, presented themselves on 4 February 2011. The Presiding Officer postponed the inquiry to 28 March 2011 and requested the Commission to serve a fresh notice of hearing on Mr Masinga. The notice was served on 24 February 2011. The inquiry proceeded on 28 March 2011. Mr Masinga requested another postponement for NEHAWU to instruct an attorney. On 24 May 2011, Mr Masinga was represented by an attorney. Various points in limine were raised and were to be addressed on 22 August 2011.
6. Progress report, dated 29 June 2011, on the provisional suspension of Magistrate IWOM Morake, Lichtenberg
6.1. The Minister, on the advice of the Commission, provisionally suspended Mr Morake from office with effect from 4 November 2010. The suspension was confirmed by the National Assembly and the National Council of Provinces on 18 and 24 November 2010.
6.2. On 13 July 2007, Mr Morake had appeared in the Lichtenburg District Court on three (3) charges of theft. On 18 October 2010, he was convicted on two (2) of the three (3) charges. The matter was postponed to 1 February 2011 for sentence. The sentencing hearing was postponed several times but, on 21 June 2011, Mr Morake was sentenced to 4 years imprisonment on each count. The sentences are to run concurrently.
6.3. On 29 December 2010, the Commission charged Mr Morake with several counts of misconduct, contained in a charge sheet which was served on him on 29 December 2010. Having considered Mr Morake’s written explanation on the charges of misconduct, the Commission resolved on 10 February 2011 to proceed with the misconduct inquiry. Notice was served on Mr Morake.
6.4. The inquiry into Mr Morake’s alleged misconduct commenced on 11 April 2011. Mr Morake’s representative requested the Presiding Officer to postpone the disciplinary proceedings against Mr Morake, as he would appeal against his conviction once sentence had been imposed, and requested that the inquiry be kept in abeyance until after the outcome of the criminal case on appeal.
6.5. The Presiding Officer at the disciplinary hearing granted a postponement until 24 June 2011, provided that proof that he had filed an appeal was submitted. On 24 June 2011 the Presiding Officer granted Mr Morake a further request for postponement until 11 July 2011 to give him the opportunity to file his appeal against his conviction and furnish him with proof thereof.
7. Progress report, dated 29 June 2011, on the provisional suspension of Magistrate FR Rambau, Polokwane
7.1. On 8 February 2010, the Regional Court President of the Limpopo Province had informed the Commission that Mr Rambau, a regional magistrate at Polokwane, had been arrested for corruption on 5 February 2010. Mr. Rambau was arrested together with the prosecutor and an attorney. It is alleged that Mr. Rambau, the prosecutor and the attorney had arranged the outcome of a trial by pre-determining the sentence for financial reward.
7.2. Mr Rambau and his co-accused appeared in the Musina District Court on 8 February 2010 on charges of corruption. The matter was set down for 11 to 13 October 2010. The criminal case was postponed for further hearing to 7 – 11 March 2011, 11-15 April 2011 and 30 May – 3 June 2011. The criminal case against Mr. Rambau is still part-heard and has been postponed to 29 August 2011 - 2 September 2011 and 10 October 2011 - 14 October 2011. Mr. Rambau also faces a further criminal charge for conspiracy to commit murder. This case was postponed to 5-9 September 2011 for trial.
7.3. The Minister, on the advice of the Commission, provisionally suspended Mr Rambau from office with effect from 4 November 2010. The suspension was confirmed by both the National Assembly and the National Council of Provinces on 18 and 24 November 2010 respectively.
7.4. A written notice containing the allegations concerned, dated 17 November 2010, was served on Mr. Rambau. At the misconduct inquiry, which was set down for 9 February 2011, Mr. Rambau requested that the inquiry be postponed until the criminal case against him had been finalised, as the criminal charge(s) form the basis of the disciplinary proceedings against him.
7.5. The Presiding Officer postponed the misconduct inquiry to 8 April 2011. He requested that both parties address him on whether he should postpone the misconduct inquiry indefinitely, pending the finalisation of the criminal case against Mr. Rambau. Mr. Rambau instructed an attorney to represent him in the misconduct inquiry. On 8 April 2011, Mr. Rambau applied for the proceedings to be postponed without his attorney being present. It was placed on record that Mr. Rambau did not instruct his attorney to represent him at the inquiry. He however indicated that he instructed counsel to represent him. He further indicated that he wanted to be furnished with further particulars in respect of the misconduct charge against him. The Presiding Officer granted his request for a postponement, provided that Mr Rambau’s counsel should appear before him on the remand date and that he should formally request the Commission to be furnished with further particulars in writing.
7.6. On 20 June 2011 counsel appeared on behalf of Mr. Rambau at the misconduct inquiry. No further particulars were requested from the Commission at that stage. The defence, again, requested a postponement pending finalisation of the criminal matter against Mr. Rambau. They indicated that the criminal case was likely to be concluded in October 2011. The Presiding Officer postponed the inquiry until 12 September 2011.
8. Progress report dated 29 June 2011 on the provisional suspension of Magistrate L Skrenya, Cala
8.1. On the advice of the Commission, the Minister provisionally suspended Magistrate Skrenya from office with effect from 4 November 2010. The National Assembly and the National Council of Provinces both confirmed the suspension on 18 and 24 November 2010 respectively. The reasons for the provisional suspension follow:
8.2. On 5 August 2009 the Director of Public Prosecutions: Transkei directed that Mr Skrenya be prosecuted on a charge of fraud.
8.3. On 18 September 2009, Mr Skrenya appeared in the Cala District Court. The criminal case was postponed on various occasions and was remanded to 21 and 22 September 2010 for trial. The criminal charge flows from misrepresentations that Mr Skrenya made to his sub-cluster head relating to a claim for a transport allowance when he had used a government vehicle.
8.4. A preliminary investigation conducted into other complaints filed against Mr Skrenya found evidence that, on 12 May 2009, he had irregularly refused to adhere to a request by the Prosecutor to withdraw a criminal charge against an accused before a plea was tendered, postponed the case to 30 June 2009 and ordered that the accused be kept in custody. This decision was later set aside by the High Court on special review. His conduct resulted in the Minster of Justice and Constitutional Development being sued for damages.
8.5. It is further alleged that Mr Skrenya held a criminal court which was not properly constituted, and that he postponed various criminal cases in chambers in the absence of the prosecutor.
8.6. The misconduct inquiry against Mr Skrenya began on 4 October 2010. Mr Skrenya requested a postponement so that he could instruct an attorney. He also asked that the Presiding Officer postpone the disciplinary proceedings pending the outcome of the criminal case against him. He made representations to the Director of Public Prosecutions not to pursue the charges against him. The Presiding Officer granted his request for a postponement to 9 and 10 December 2010. On 9 December 2010, by mutual agreement, the matter was postponed further to 4 July 2011.
8.7. The Director of Public Prosecutions has now decided to proceed against Mr Skrenya and the case has been set down for trial on 13 and 14 September 2011.
9. Committee’s response
9.1. The Committee is extremely displeased at how long it is taking to finalise disciplinary matters of this nature. The Committee has expressed this concern in previous reports but this does not appear to be having any impact. Specifically, Magistrate Maruwa had his first appearance on 11 counts of fraud on 24 August 2007, yet he was only provisionally suspended on 3 February 2010; Magistrate Masinga was arrested for assaulting his wife with an axe, amongst others, on 19 March 2009, yet his provisional suspension only occurred on 30 March 2010; Magistrate Morake appeared in court on three counts of theft on 13 July 2007, yet he was only provisionally suspended on 4 November 1010; Magistrate Rambau was arrested on 5 February 2010 on charges of corruption, yet he was only provisionally suspended on 4 November 2010; and Magistrate Skrenya was provisionally suspended in November 2010, yet the decision was taken to prosecute him on 5 August 2009. It is untenable for a Magistrate, who has been formally charged on a criminal offence to remain in office for more than a year, before being provisionally suspended.
9.2. The Committee is particularly concerned that the Commission postpones its disciplinary inquiries until after the conclusion of a related criminal case, yet these criminal matters have been characterised by extensive and unnecessary delays. Some Committee members have remarked on the likelihood that the magistrates concerned may be employing their judicial experience of the delaying tactics of accused persons to draw out the criminal process to their advantage. The Committee was told, however, that the Commission had taken a policy decision in March of this year to proceed with a disciplinary inquiry without waiting for the criminal matter to be finalised. The Committee welcomes this, as it should speed up matters, but fails to understand why the Commission ever coupled the resolution of a disciplinary matter to the conclusion of a related criminal case. This approach is not supported by any principle of administrative justice, nor was the Committee referred to any supporting case law. Nor is it the practice in the private sector, as disciplinary matters are routinely completed by the time that a related criminal matter has been decided.
9.3. The Committee believes that the Commission should also ensure that criminal cases involving magistrates are expedited. The Committee has been told that the Commission had intended to approach the National Director of Public Prosecutions (NDPP) to ask that criminal cases involving magistrates be proceeded with urgently. The Committee requests that the Commission inform it of the outcome of its request to the NDPP.
9.4. The Committee notes that the Commission has, however, continued to postpone disciplinary hearings while the outcome of the criminal matter is taken on appeal. The cases of Magistrates Maruwa and Morake are illustrative: In both cases, the magistrates concerned were convicted on charges dating from 2007. The disciplinary cases are still to be heard, as they were postponed on the basis that the criminal convictions are being appealed against. These postponements were made in June this year, after the Commission had made its policy decision to proceed with a disciplinary hearing despite a related criminal matter not having been finalised. The reasons for the continued postponements to accommodate appeal processes are unclear. Although it is possible to argue that, at the trial stage, it may be prejudicial for a disciplinary inquiry to proceed until the State has led its evidence, this does not apply to appeals, where no further evidence is led. It does not appear to be any justification for further delaying the disciplinary proceedings.
9.5. During this time, however, the magistrates concerned have continued to receive their salaries and benefits. The Committee was told that once convicted, magistrates are asked to show cause why their salaries should not be suspended. The Committee believes that, if appropriate, this step should be taken much earlier in the proceedings. If this were done, any abuse of process aimed at delaying proceedings to continue to receive benefits, would be discouraged. The Committee also notes the inconsistency in the cases of Magistrate Masinga, who is still receiving his salary pending the outcome of his appeal, despite his conviction for attempted murder on 23 May 2011, and Magistrate Maruwa, who was convicted of fraud and theft on 29 September 2009, but is still receiving his salary.
9.6. The Committee is extremely concerned that Magistrate Masinga is represented by a Public Service trade union, despite the change in the status of magistrates from public servants to public office-bearers. The Committee believes that this anomaly needs to be addressed by the Commission to ensure that this does not happen in future.
9.7. The Committee is aware that the Magistrates Commission’s quality assurance unit has severe capacity constraints and is sympathetic. It is also possible that the Magistrate’s Act and its regulations need revision to provide for a more streamlined procedure.
9.8. The Committee also notes that it is possible for magistrates to be appointed in an acting capacity, despite having been subject to disciplinary processes that would have resulted in their removal from office - provided that they resign before they are removed. Acting appointments (which are not the responsibility of the Magistrates Commission) may not always be properly screened. The Committee recommends that the Ministry look at setting up a screening mechanism similar to that contained in the Municipal Systems dispensation.
9.9. The Committee intends to discuss its concerns with the Commission at the meeting scheduled on the 17 September 2011.
Report to be considered.
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