ATC171101: Report of the Select Committee on Security and Justice on the suspension from office of Mr P S Hole, Regional Magistrate at Kimberley, dated 01 November 2017

NCOP Security and Justice

Report of the Select Committee on Security and Justice on the suspension from office of Mr P S Hole, Regional Magistrate at Kimberley, dated 01 November 2017
 

1. Introduction

 

The Select Committee on Security and Justice, having considered the Magistrates Commission’s disciplinary hearing progress reports on the provisional suspension of a magistrate, Mr P S Hole, a Regional Magistrate at Kimberley, tabled by the Minister for Justice and Correctional Services, in terms of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:

 

1. Background

 

1. The Regional Court President, Mr K Nqadala, of the Northern Cape region, received enquiries via the Chief Magistrate, Kimberley, from Social Worker, Ms Liesel Vermeulen of Molehe Mampe Secure Care Centre about progress on certain cases, including cases RCZ 856/2009 and RCZ 641/2010.  
2. On the l7 May 2011, Mr Nqadala forwarded copies of the said enquiries to Mr Hole and all other regional court magistrates within his region. Mr Hole raised an objection to the disclosure of these enquiries to him.
3. On 7 June 2011 Mr Hole caused a matter, case RCZ 856/2009 — State v P Loeto and others, which was no longer on his roll, to be placed before him. Mr Hole subpoenaed the Regional Court President, Mr Nqadala, to provide evidence in respect of the charge on which the accused was appearing in a case where the Regional Court President was not involved and could not provide any evidence.
4. Mr Hole, by taking up the matter of his objection to the disclosure of the enquiries from the Regional Court President in public, and using the court as a platform, caused the Regional Court President, Mr Nqadala, to be ridiculed in public. The court transcripts revealed the following: “Court: You will recall, Mr Nqadala, that I objected to you writing to me among other persons in this fashion."
5. Mr Hole questioned his Head of Office’s qualifications and whether he knew the meaning of an accused’s right to a fair trial. He further questioned his Head of Office’s understanding of the residual rights of an accused person and whether Mr Nqadala thought it fair to include a letter that disclosed information that painted the accused in a bad light.  
6. The Magistrates Commission at its meeting on 22 July 2011, considered the content of various complaints received during July 2011 from the Regional Court President, Mr Nqadala, regarding Mr Hole.
7. The complaints refer, inter alia, to the following:
   1. A transcript of the court proceedings in case no. RCZ 856/2009 —- State v P Loeto and others in which Mr Hole presided on 7 July 2011, when Mr K M Nqadala was summoned to appear in his court.
   2. A transcript of the court proceedings in case RCZ 641/2010 ·— State v Mbalula and Others in which Mr Hole presided on 7 June 2011 in the absence of the accused. The transcript indicates that Magistrate V S Smith remanded the case on 6 June 2011 to 20 June 2011. There is, however, no indication on the transcribed record as to why the case was enrolled on his court roll on 7 June 2011.
   3. The transcript of the court proceedings in case RCZ 641/2010 further indicates that Mr Hole presided in the matter on 7 July 2011 while Magistrate V Smith remanded the case on 20 June 2011 to 11 July 2011. There is, again however, no indication on the transcribed record as to why the case was enrolled on his court roll on 7 July 2011.
   4. The transcript of the court proceedings in case RCZ 641/2010 furthermore indicates that Mr Hole presided in the matter on 12 July 2011 while the case was remanded on 11 July 2011 to 14 and 15 December 2011 by Magistrate V Smith. There is no indication on the transcribed record as to why the case was enrolled on his court roll on 12 July 2011 when he had formally recused himself from the case while the case was not properly before him for trial.
   5. The transcriptions in case no. RCZ 856/2009 — State v P Loeto and Others and case no. RCZ 641/2010 — State v Mbalula and Others contain various remarks, utterances and discussions by Mr Hole which, in the Commissions view, inter alia, displayed an abuse of judicial power. The transcript also contained discussions, remarks and comments on matters pertaining to the magistrates’ profession in a manner which brought the judiciary into disrepute and which is detrimental to the image of the office of magistrate. These utterances did not uphold and promote the good name, dignity and esteem of the office of magistrate and the administration of justice.
8. In order to advise the Minister on his provisional suspension from office pending the outcome of the investigation, Mr Hole was afforded the opportunity to comment on the intention of the Magistrates Commission to provisionally suspend him.
9. Mr Hole responded in writing on 29 August 2011. At its meeting held on 17 September 2011, the Commission, having considered Mr Hole’s response dated 29 August 2011, held the view that reliable evidence existed indicating that the allegations against him were of such a serious nature as to make it inappropriate for him to perform the functions of a magistrate while the allegations were investigated and resolved to recommend that Mr Hole be provisionally suspended from office in terms of section 13(3)(a).
10. Parliament confirmed the provisional suspension on 24 November 2011.

 

1. Misconduct inquiry

 

1. The misconduct inquiry against Mr Hole commenced on 15 October 2012 and was finally concluded on 07 June 2016.
2. The record of the disciplinary proceedings reflects that the tribunal convened more than one year after Mr Hole’s provisional suspension after its first sitting.  Applications for postponement of the misconduct inquiry by Mr Hole for various reasons have caused the tribunal to convene on a total of 11 (eleven) sittings.  A feature of the repeated applications by Mr Hole was the many legal representatives he referred as his counsel only for them not to appear at the sitting. These applications grounded the continuation of the proceedings on the merits to a halt.
3. Mr Hole caused a Notice of Motion to be served at the offices of the Magistrates Commission on 20 March 2015. Mr Hole approached the North Gauteng local Division of the High Court to interdict, restrain and prohibit the Presiding Officer (cited as the Third Respondent) from conducting, commencing, resuming and/or proceeding with the disciplinary hearing ordered by the Magistrates Commission (cited as the Second Respondent).  He further sought relief from the High Court declaring that the Chairperson of the Magistrates Commission (the First Respondent) and/or the Commission's appointment of the Presiding Officer as Chairperson in the disciplinary hearing instituted against him are wrongful, unlawful, irrational, unreasonable and unconstitutional. Mr Hole also applied for an order, directing that the Chairperson of the Magistrates Commission appoints a new, independent and impartial Chairperson to substitute the current Presiding Officer at the misconduct hearing.
4. The Commission, in light of Mr Hole's actions/conduct in delaying the finalization of the misconduct hearing against him, at its meeting on 27 November 2015 resolved to continue with the misconduct hearing as the court order did not prohibit the Magistrates Commission from proceeding with the disciplinary process.
5. The Person Leading the Evidence (PLE) on behalf of the Commission on advised Mr Hole's attorney on 22 February 2016.  The latter indicated that he would contact counsel to confirm his availability for the continuation of the inquiry on 03 to 06 May 2016.  The Presiding Officer was also advised of the Commission's resolution and confirmed his availability to continue with the misconduct proceedings. The PLE was requested to serve a Notice for the inquiry to proceed on 03 May 2016 on Mr Hole and his legal team, which he duly did. Despite having been duly notified, Mr Hole and his legal team were absent. Having satisfied himself that proper notice was given, the Presiding Officer ordered the proceedings to continue in their absence. Evidence was led and the inquiry was postponed to 06-08 June 2016 for argument, judgment and, depending on the outcome, for the imposition of a sanction.
6. On 06 June 2016, the PLE presented arguments on the Merits and on 07 June 2016 the Presiding Officer gave a substantive written judgment, finding Mr Hole guilty on all the 10 (ten) charges, some in the alternative, levelled against him. 
7. A local attorney appearing on behalf of Mr Hole, on 07 June 2016 again requested the tribunal to postpone the inquiry pending the outcome of Mr Hole's application in the High Court. The Presiding Officer dismissed this application.
8. The Presiding Officer considered all the mitigating and aggravating factors and recommended that Mr Hole be removed from office as contemplated in Section 13 of the Magistrates Act, 90 of 1993. Mr Hole's rights to make representations to the Magistrates Commission in terms of the applicable regulations were explained to the attorney, who undertook to advise Mr Hole's instructing attorney accordingly.
9. Having considered the documentation presented to the Magistrates Commission as required by Regulation 26(19) read with Regulation 26(22) of the Regulations for Judicial Officers in the Lower Courts, 1994 (the Regulations), the Commission at its meeting held on 25 November 2016 resolved to recommend to the Minister that Mr Hole be removed from office on the grounds of misconduct in terms of section 13(4)(a)(i) of the Act.  The Commission is of the view that Mr Hole's conduct as set out in the charges of which he was found guilty is so serious that it justifies his removal from office.

 

1. Recommendation to suspend the magistrate and withhold remuneration

 

1. The Minister, in terms of Section 13(4)(a), of the Magistrates Act, if the Magistrates Commission recommends that a magistrate be removed from office on inter alia the basis of misconduct, must suspend that magistrate from office or, if the magistrate is provisionally suspended from office, confirm the suspension. A report in which such suspension and the reasons therefore are made known, must be tabled in Parliament by the Minister within fourteen (14) days of such suspension, if Parliament is then in session, or, if Parliament is not then in session, within fourteen (14) days after the commencement of its next ensuing    session.
2. Parliament must then as soon as is reasonably possible, pass a resolution as to   whether or not the restoration of his/her office of the Magistrate so suspended is recommended.
3. After a resolution has been passed by Parliament as contemplated in paragraph 2 above, the Minister shall restore the Magistrate concerned to his/her office or remove him/her from office, as the case may be.
4. The Minister was further advised that the Constitutional Court in Van Rooyen and Others v The State and Others, CCT case no 21/2001 held that if good reasons exist for the suspension of a magistrate, the withholding of salary during the suspension is not necessarily disproportionate.  This is so even if the withholding of salary can take place from the time of a provisional suspension. The Commission is of the view that Mr Hole's suspension from office without remuneration is, given the circumstances set out above, justified. There seems to be no reason why a magistrate, who is suspended from office pending Parliament's decision to pass a resolution whether or not to restore him/her to the Office of Magistrate, should still be paid.

 

1. Committee recommendation to the NCOP for approval

The Select Committee on Security and Justice, having considered the disciplinary proceeding report from the Magistrates Commission, the Minister’s suspension and removal of Mr PS Hole from the Office of Magistrate and the recommendation to withhold Mr P S Hole’s remuneration, reports that it concurs with the suspension and recommends that the National Council of Provinces confirms Mr PS Hole’s suspension from office and withholding of remuneration.

Report to be considered.