ATC100519: Report Provisional Suspension from Office of Magistrate M K Chauke

NCOP Security and Justice

Report of the Select Committee on Security and Constitutional Development on the Provisional Suspension from Office of Magistrate M K Chauke, dated 19 May 2010

 

Introduction

 

The Select Committee on Security and Constitutional Development, having considered evidence relating to the report on the provisional suspension from office of Mr M K Chauke, an additional Magistrate at Pretoria, Gauteng, 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:

 

Background

 

1.                   The Select Committee heard evidence from the representatives of the Magistrates Commission concerning the matter of the provisional suspension from office of Magistrate Mr M K Chauke on 3 March 2010.

 

2.                   Mr Chauke’s first appearance before the Specialized Commercial Crime Court, Pretoria, on a charge of theft was on 16 September 2004.  The charge of theft emanated from the theft of a number of containers from Vitamine Laboratories in Midrand.

 

3.                   On 7 November 2005, the Commission charged Mr Chauke with misconduct.

 

4.                   Acting on the advice of the Commission, the then Minister of Justice and Constitutional Development provisionally suspended Mr. Chauke from office with effect from 13 December 2005. Mr. Chauke was informed in writing.

 

5.                   On 8 November 2007 the Specialized Commercial Crime Court, Pretoria, convicted Mr. Chauke, his wife and his son of contravening section 37 of the General Law Amendment Act, No. 62 of 1955. On 16 November 2007 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 Act 62 of 1955 during the period of suspension.

 

6.                   On 15 November 2007, following his conviction, Mr. Chauke was invited to furnish the Commission with representations why his remuneration should not be withheld. This invitation was personally served on him on 16 November 2007. He was requested to submit representations by 20 November 2007. Representations were received from his attorneys, dated 20 November 2007. Messrs Mohlaba and Moshoana Attorneys, acting on Mr Chauke’s behalf, on 20 November 2007 advised the Commission that they were instructed to appeal against his criminal conviction.

 

7.                   At its meeting held on 22 November 2007, the Magistrates Commission considered the matter and resolved to determine to withhold Mr. Chauke’s remuneration in terms of section 13(4A)(a) of the Act. The Commission was of the view that without anticipating the outcome of the investigation into Mr.  Chauke’s fitness to hold the office of magistrate, the existing evidence against Mr. Chauke is of such a serious nature that it would justify his removal from office, should he be found guilty of misconduct.

 

8.                   The Commission did not proceed with the misconduct inquiry against him, pending the outcome of the matter on appeal.

 

9.                   Parliament confirmed both the provisional suspension from office and the determination to withhold his remuneration. Mr Chauke thereafter instituted proceedings in the then Transvaal Provincial Division of the High Court in Case No 58858/07. On 7 March 2008 the Court declared that his provisional suspension has lapsed and set aside the Commission’s determination to withhold his remuneration. The Court however refused his application to be reinstated as magistrate.

 

10.               The Director of Public Prosecutions applied to have Mr Chauke’s appeal against his criminal conviction struck from the roll because the applicant failed to file his heads of argument. This was set down on the roll of 20 November 2009 in the North Gauteng High Court. Mr Chauke eventually filed his heads of argument on 19 November 2009. The High Court postponed the matter to 08 March 2010 for the appeal to be heard.

 

11.               Since two (2) years have now lapsed since his conviction on 8 November 2007, the Commission at its meeting held on 26 November 2009 resolved to recommend that Mr Chauke again be provisionally suspended from office in terms of section 13(3)(a) of the Act[1]. By direction of the Executive Committee of the Commission, Mr Chauke was again charged with misconduct. The new charge sheet was also served on him personally against his signature.

 

12.               The Commission intends to proceed with the misconduct inquiry against Mr Chauke. The Commission is of the view that the existing evidence against Mr Chauke is of such a serious nature that it would justify his removal from office, should his appeal fail. The Commission will consider withholding Mr Chauke’s remuneration after he has been provisionally suspended from office.

 

Committee recommendation

 

The Select Committee on Security and Constitutional Development, having considered the report on the provisional suspension from office of Mr M K Chauke, recommends that the National Council of Provinces confirms the provisional suspension from the office of Magistrate of Mr M K Chauke.

 

Report to be considered.

 

 

 

 

 

 

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[1] Magistrates Act 1993 (Act no 90 of 1993)