ATC141017: Report of the Select Committee on Security and Justice on the Provisional Suspension from Office of Magistrate R M Malahlela, dated 16 October 2014

The following report replaces the Report of the Select Committee on Security and Justice which was published in the Announcements, Tablings and Committee Reports dated 16 October 2014

Report of the Select Committee on Security and Justice on the Provisional Suspension from Office of Magistrate R 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 Magistrate Mrs R M Malahlela , an aspirant additional magistrate at Delmas , tabled by the Minister for Justice and Constitutional Development 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 Magistrate Mrs R M Malahlela .

1.2. Mrs Malahlela , an aspirant additional magistrate at the Delmas District Court received her appointment 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 at the 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 allegations against Mrs Malahlela , alleging that she was absent 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 appointment as 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 Malahlela and 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 that Mrs 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 complaints against 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 agreed on 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 Constitutional Development that 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 Malahlela was 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 Magistrate R M Malahlela , recommends that the National Council of Provinces confirm the provisional suspension from office of Magistrate pending the outcome of the investigation and misconduct hearing.

Report to be considered.