ATC171115: Report of the Portfolio Committee on Justice and Correctional Services on the 9th Report by the Magistrates Commission on the conditional upliftment of the provisional suspension of Mr P S Hole, Regional Magistrate at Kimberley, in terms of a resolution of the Assembly on 20 June 2013, date 15 November 2017
Report of the Portfolio Committee on Justice and Correctional Services on the 9th Report by the Magistrates Commission on the conditional upliftment of the provisional suspension of Mr P S Hole, Regional Magistrate at Kimberley, in terms of a resolution of the Assembly on 20 June 2013, date 15 November 2017
The Portfolio Committee on Justice and Correctional Services, having considered the 9th Report by the Magistrates Commission on the conditional upliftment of the provisional suspension of Mr P S Hole, Regional Magistrate at Kimberley, in terms of a resolution of the Assembly on 20 June 2013, reports as follows:
- Mr Hole is a Regional Magistrate at Kimberly and has served the Department of Justice and Constitutional Development as an acting judge of the former Transkei High Court from October 2004 to July 2006. He was appointed a magistrate in December 2006 and, in March 2007, was appointed as a Regional Magistrate.
- Mr Hole was provisionally suspended on 29 September 2011, pending an investigation into his alleged misconduct. The National Assembly approved his provisional suspension on 24 November 2011.
- Subsequent to the suspension, the Legal Aid Board Northern Cape and the Director of Public Prosecution addressed a memorandum to the Magistrates Commission requesting that Mr Hole's suspension be uplifted in order for him to finalise his partly-head matters.
- Child line Northern Cape also brought an application before the High Court Northern Cape to have his suspension uplifted to enable him to finalize his partly-heard matters. In its papers, Childline alleged that the suspension of Mr Hole was causing tremendous hardship on the women and children involved in the said partly-heard matters.
- Having considered the rights of all the affected parties in the partly-heard matters and the prejudice that may be suffered, the Minister of Justice and Constitutional Development was of the view that the rights of children were of paramount importance and should take precedence. The Minister recommended that Parliament pass a resolution in terms of Section 13(3) (g) of the Magistrate Act of 1993 to uplift the suspension of Mr Hole in order to enable him to continue with his judicial functions relating to the cases.
- Having considered the Minister’s request to uplift the provisional suspension of Mr Hole, the Portfolio Committee on Justice and Constitutional Development recommended that the National Assembly approve the upliftment of the provisional suspension. On 20 June 2013, the National Assembly resolved to lift the provisional suspension of Mr P S Hole, with the following conditions:-
- that he only be assigned partly-heard matters and a decision regarding allocation of new matters will be informed by the outcome and development regarding the inquiry into his fitness to hold office currently underway;
- the Magistrates Commission would also consider partly-heard matters which could start de novo w where this is necessary and desirable having regard to possible prejudice to the children, women or any other person who had already testified;
- Mr Hole desists from using the court as an avenue to insult anyone or conduct himself in any manner that compromised the integrity of the judiciary and brings the administration of justice into disrepute and
- The Magistrates Commission provides progress reports on the cases before Mr Hole and whether Mr Hole is abiding by the conditions.
- The misconduct inquiry was postponed numerous times due to Mr Hole’s ill-health, the unavailability of his legal representatives and various applications that included the recusal of the Presiding Officer and requests for further particulars.
- On 26 February 2015, Mr Hole’s legal team brought a substantive application requesting that the Commission furnishes him with a full record of the minutes of the Commission's Ethics Committee in which the decision to charge him was made, as well as the minutes of the Ethics Committee where the decision not to charge Mr Nqadala was taken. The application of Mr Hole’s legal team was dismissed. His legal team informed the Commission that they had received instructions from him to apply to the High Court for the review of the order of the Chairperson in dismissing their application for further particulars. On 27 February 2015, Mr Hole’s legal team served the Presiding Officer and gave the Person Leading Evidence a copy of the affidavit signed by Mr Hole in which he indicated that he would be approaching the Gauteng High Court Local Division for the review of the Presiding Officer's decision. He indicated that he could not file or include the Notice of Motion, as he would be approaching the High Court in Gauteng, which was a distance away. The Chairperson postponed the matter to 23 March 2015.
- On 23 March 2015, Mr Hole handed in proof that his application was filed at the North Gauteng High Court and that the matter was set down on an urgent basis for the next day, 24 March 2015. The Presiding Officer granted his request for a postponement of the inquiry sine die, pending the outcome of Mr Hole's application in the High Court.
- The Senior Assistant State Attorney dealing with the High Court application on behalf of the Respondents confirmed that Mr Hole did not further his application and that he had not complied with his duty to have the matter prepared for hearing and set down. The State Attorney accordingly took steps to place the matter on the roll. Mr Hole's legal representative proposed that the application be withdrawn with each party paying its own costs. It became clear that Mr Hole intended not to proceed with his Notice of Motion, despite his submissions in his representations to the Commission that the finalization of the disciplinary hearing against him, prior to the conclusion of his High Court application, was unlawful. The Commission was advised that that Mr Hole's application was set down on the opposed motion roll to be heard on 24 October 2016 in the North Gauteng High Court.
- On 26 October 2016, the State Attorney advised the Commission that Mr Hole's High Court application did not proceed in the opposed motion court on 24 October 2016, since Mr Hole indicated that he was not in a position to proceed as his counsel was unexpectedly taken ill and he was not able to attend court. A copy of a medical certificate was tendered to the Court to this effect. Mr Hole only sought interim relief to have the determination to withhold his remuneration set aside. The presiding judge had under the circumstances little choice but to postpone the application. The matter was again enrolled for 20 December 2016 and stood down until 21 December 2016. On this day, the court removed the application from the roll to enable Mr Hole to supplement his affidavit. The application was again set down to be heard on 14 February 2017. The matter proceeded in court on that day where after the presiding judge reserved judgment. The High Court delivered judgment on 30 May 2017. The Court found that Mr Hole failed to make out a proper case against the withholding of his salary and therefore dismissed his application with costs.
- The Magistrates Commission considered all relevant documents as required by Regulation 26(22) read with Regulation 26(19) of the Regulations for Judicial Officers in the Lower Courts, 1994 (the Regulations) and resolved to recommend to the Minister that the recommendation of the Presiding Officer in terms of Regulation 26(17)(b) of the Regulations be accepted and 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.
- Having considered the Commission’s report on the 9th Report by the Magistrates Commission dated 08 June 2017 on the conditional upliftment of the provisional suspension of Mr P S Hole, Regional Magistrate at Kimberley, in terms of a resolution of the Assembly on 20 June 2013, the Portfolio Committee on Justice and Correctional Services recommends that the National Assembly confirm the suspension.
Report to be considered
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