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
NCOP Security and Justice
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.
5.1.
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
Malahlelas
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.
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