ATC141028: Report of the Portfolio Committee on Justice and Correctional Services on the Provisional Suspension of Aspirant Magistrate RM Malahlela, dated 28 October 2014:

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the Provisional Suspension of Aspirant M agistrate RM Malahlela , dated 28 October 2014:

The Portfolio Committee on Justice and Correctional Services, having considered the report on the provisional suspension of Magistrate RM Malahlela , an Aspirant Magistrate at Delmas , reports as follow s:

  1. Mrs Malahlela is an aspirant additional magistrate at the Delmas District Court. She was appointed to the lower court bench on 1 November 2004. To date her permanent appointment could not be finalized 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.
  2. A preliminary investigation report in terms of regulation 26(3) of the Regulations for Judicial Officers in the Lower Courts, No. R. 361 of 11 March 1994, recommended that Mrs Malahlela be charged with four counts of misconduct, but the Ethics Committee resolved due to the lapse of time not to charge her with misconduct.
  3. At its meeting held on 25 May 2009, the Ethics Committee considered an alleged strained relationship between the magistrate and her Judicial Head of Office; allegations of poor performance; alleged misconduct and prejudice. It resolved that a delegation convene at Delmas Court House to discuss the issues and determine the way forward. Two visits were scheduled with the magistrate, without any success. .
  4. The Head of the National Judicial Quality Assurance Office (Pretoria) indicated in an internal memorandum dated 30 September 2010 that Mrs Malahlela was for considerable periods absent from work and in default to explain her absence; she could not satisfy the Commission that she is a fit and proper person to be appointed as a magistrate.
  5. Medical reports indicated that she suffers from Major Depressive Disorder and Panic Disorder. 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.
  6. The Ethics Committee resolved on 1 December 2011 to refer the matter to the Commission's Appointments Committee to make a recommendation to the Minister not to appoint the magistrate on a permanent basis.
  7. The Executive Committee of the Commission, however, referred the matter back to the Ethics Committee in order to consider whether the magistrate should not be charged with misconduct and to direct a separate investigation in terms of Regulation 29 of the Regulations.
  8. The Ethics Committee resolved that a Judicial Quality Assurance Report on the judicial work of the magistrate must be submitted for consideration. The report was compiled by two Senior Magistrates and covered the period 2010 to August 2012.
  9. The Report was then submitted to the Magistrate on 18 April 2013 for her comments. She indicated that she needed a week to submit her comments, but only responded on 28 June 2013.
  10. The Ethics Committee recommended that she be exposed to an additional six months of probation under the guidance of an on-board mentor. Although the gist of the report by the mentor was predominantly positive in nature, the mentor was not prepared to make a recommendation. The mentor indicated that "it was difficult to write a comprehensive report due to the fact that the magistrate was during the period of extended probation absent for 39 days – 31 days for vacation leave and 8 days for sick leave; the magistrate was evaluated on her work done in the reception court; the statistics she provided raises many questions as to her productivity; she often arrive late at work; does not attend in time to circulars/official correspondence which she must sign; her dedication to her work is questionable; the traffic court roll is not finalized on the allocated court day."
  11. At its meeting held on 22 May 2013, the Ethics Committee resolved to conduct a preliminary investigation in terms of Regulation 26(1) of the Regulations to obtain evidence in order to determine whether there are any grounds for a charge of misconduct against the magistrate. The investigation report recommended that Mrs Malahlela be charged with misconduct. A charge sheet comprising of 29 counts of alleged misconduct was served on the Magistrate on 5 March 2014.
  12. Mrs Malahlela filed a Notice of Motion at the North Gauteng High Court citing the Magistrates Commission and the Minister of Justice as the Respondents. She applied 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 application is still to be heard.
  13. In a letter dated 4 March 2014, the Commission requested Mrs Malahlela to show cause why the Commission should not recommend that she be provisionally suspended from office in terms of section 13(3)(a) of the Act, pending the outcome of an investigation into her fitness to hold the office of magistrate. Having considered Mrs Malahlela`s response and having noted the fact the she has filed a Notice of Motion in the High Court, the Magistrates Commission resolved to recommend that the Minister provisionally suspends Mrs Malahlela from office in terms of section 13(3)(a) of the Act.
  14. The Commission is of the view that the existing evidence against Mrs Malahlela is of such a serious nature as to make it inappropriate for her to perform the functions of a Magistrate whilst the misconduct hearing is pending. It is inappropriate for a judicial officer, against whom so many civil judgments were taken and handed down from the court house where she works as a judicial officer, to still sit on the bench. Her conduct in both her private and professional capacity reflects negatively on her integrity. The Commission is of the view that existing evidence against Mrs Malahlela is of such a serious nature that it would justify her removal from office, should she be found guilty of the misconduct charges which are preferred against her.
  15. The Committee feels that the image of our courts and presiding officers is very important and must be protected.


Having considered the Commission’s report on the provisional suspension from office of Mrs RM Malahlela and the Minister’s request, the Committee recommends that the National Assembly confirms the provisional suspension.

Report to be considered.


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