ATC130619: Report of the Select Committee on Security and Constitutional Development on the Lifting of the Provisional Suspension of Magistrate Mr P S Hole, dated 19 June 2013:

Report of the Select Committee on Security and Constitutional Development on the Lifting of the Provisional Suspension of Magistrate Mr P S Hole, dated 19 June 2013:

The Select Committee on Security and Constitutional Development, having considered the report of the Minister of Justice and Constitutional Development on the lifting of the provisional suspension of Magistrate P S Hole, a Regional Court Magistrate in Kimberley , reports as follow s:

1. Background

Following a recommendation by the Magistrates Commission the Minister of Justice and Constitutional Development on 29 September 2011 provisionally suspended Mr P S Hole, Regional Magistrate, Kimberley, from office with remuneration in terms of section 13(3)(a) of the Magistrates Act, 1993, pending the investigation into his fitness to hold office.

The recommendation by the Magistrates Commission to the Minister for the suspension of Mr Hole was based on transcriptions of court records which contain various remarks, utterances and discussions by Mr Hole which inter alia:

1. displayed an abuse of judicial power;

2. contained discussions, remarks and comments on matters pertaining to the magistrate’s profession in a manner which brought the judiciary into disrepute and which is detrimental to the image of the office of magistrate and which does not uphold and promote the good name, dignity and esteem of the office of magistrate and the administration of justice;

3. contained remarks causing the Regional Court President Mr K M Nqadala to be ridiculed in public, by using the court as the platform to do so.

The Commission was of the view that the transcribed court proceedings presented reliable evidence indicating that the allegations against Mr Hole are of such a serious nature as to make it inappropriate for him to perform the functions of a magistrate while the allegations were being investigated.

2. Provisional suspension of Magistrate P S Hole

Mr Hole was provisionally suspended on 29 September 2011 pending an investigation into his alleged misconduct. Parliament confirmed his provisional suspension on 24 November 2011.

The investigation was concluded by the Magistrate Commission on 17 November 2011. Mr Hole was formally charged on 25 November 2011.

3. Delay in disciplinary proceedings

The misconduct hearing commenced on 15 October 2012 and was on request of Mr Hole postponed to 15 April 2013 to enable him to arrange for legal representation and to challenge the decision of the Department of Justice and Constitutional Development not to provide him with legal representation at State expense at the misconduct hearing. On 15 April 2013 the matter was again on request of Mr Hole postponed until 29 July to 2 August 2013 for the hearing of evidence. Mr Hole confirmed that he has instructed senior counsel to represent him at the hearing but that his advocate would only be available on 29 July 2013 since he was acting as a judge in the High Court. He further indicated that he would in the meantime take the decision by the Department of Justice, not to provide him with legal representation at State expense, on review to the High Court but that the hearing could only continue on 29 July 2013.

4. Request to lift provisional suspension of Magistrate PS Hole

Subsequent to the suspension, the Legal Aid Board Northern Cape and the Director of Public Prosecution addressed a memorandum to the Magistrate Commission requesting that Mr Hole’s suspension be lifted in order for him to finalise his partly-head matters.

Childline Northern Cape also brought an application before the High Court Northern Cape to have his suspension lifted to enable him to finalise his partly-heard matters, which application is currently pending before Court. This application had been set down for trial on 25 June 2013.

In its papers, Childline alleged that the suspension of Mr Hole would cause tremendous hardship on the women and children involved in the said partly-heard matters on the following grounds:

4.1 There were 23 partly-heard matters of which 13 involved children from seven to seventeen years;

4.2 Two involve elderly women who were traumatised and in a very poor state of health;

4.3 If the partly-heard matters start de novo the women and children involved in these matters would be subjected to secondary trauma;

4.4 It would be difficult for some of them to recall the events of these cases as some of the incidents happened many years ago. They have received therapy following these events; and

4.5 It would not be practical to allocate these matters to other Regional Court Magistrates as there were only 2 courts equipped to hear children’s cases;

5. Minister of Justice and Constitutional Development’s recommendation

The Minister considered the application by Childline Northern Cape and the memorandum submitted by Legal Aid and the Director of Public Prosecution in the Northern Cape and held the following views:

5.1 the concerns raised were valid as they affected the rights of women and children in sexual cases;

5.2 the rights of all the affected parties in the partly-heard matters would suffer prejudice; and

5.3 the rights of children were of paramount importance and should take precedence.

The Minister therefore recommends that Parliament pass a resolution in terms of Section 13(3) (g) of the Magistrate Act of 1993 to lift the provisional suspension of Mr Hole. The Minister noted it would be in the interests of justice to lift his suspension and enable him to continue with his judicial functions.

The Minister further noted that the lifting of Mr Hole’s suspension would not affect the disciplinary process as the Magistrates Commission had concluded the investigation.

6. Recommendation

6.1 Having considered the Department of Justice and Constitutional Development’s report and the Minister of Justice and Constitutional Development’s recommendation the Committee concurs with the Minister’s recommendation on the lifting of Mr P S Hole’s provisional suspension.

6.2 The Committee further recommends that the National Council of Provinces approves the lifting of the provisional suspension with the following conditions, namely that:

a) Mr Hole is assigned only these part-heard matters. Any decision regarding the allocation of new matters is to be informed by the outcome of the inquiry into his fitness to hold office currently underway;

b) the Magistrates Commission considers starting those part-heard matters afresh where this is necessary and desirable having regard to possible prejudice to the children, women or any other person who has already testified;

c) Mr Hole must not conduct himself in a manner that compromises the integrity of the judiciary and brings the administration of justice into disrepute;

d) the Magistrates Commission provide regular reports to the National Council of Provinces on whether Mr Hole is abiding by the conditions of the upliftment, and the progress of the cases before Mr Hole, as well as the status of the disciplinary hearing against him.

Report to be considered.