ATC171115:Report of the Portfolio Committee on Justice and Correctional Services on the suspension from office of Magistrate PS Hole, Regional Magistrate at Kimberley, dated 15 November 2017

Justice and Correctional Services

This report replaces the report on the suspension from the office of the Magistrate PS Hole.

 

Report of the Portfolio Committee on Justice and Correctional Services on the suspension from office of Magistrate PS Hole, Regional Magistrate at Kimberley, dated 15 November 2017
 

The Portfolio Committee on Justice and Correctional Services, 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. 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.

 

1. 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.

 

1. 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.

 

1. 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.

 

1. 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.

 

1. 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:-

 

1. 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;
2. 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 ;
3. 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
4. The Magistrates Commission provides progress reports on the cases before Mr Hole and whether Mr Hole is abiding by the conditions.

 

1. The misconduct inquiry against Mr Hole commenced on 15 October 2012 and was finally concluded on 7 June 2016. The misconduct inquiry was postponed numerous times due, among others, to Mr Hole’s ill-health; the unavailability of his legal representatives; and various applications including requests for further particulars and the recusal of the presiding officer.

 

1. 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.

 

1. 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.

 

1. 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. 

 

1. 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 was 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.

 

1. 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.

 

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 the suspension and the reasons therefore are made known, must be tabled in Parliament by the Minister within fourteen (14) days of the 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. 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. After a resolution has been passed by Parliament, the Minister shall restore the Magistrate concerned to his/her office or remove him/her from office, as the case may be.

 

1. 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. Given the circumstances set out above, the Commission is of the view that Mr Hole's suspension from office without remuneration is 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. Recommendation

The Committee, having considered the 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 PS Hole’s remuneration, reports that it concurs with the suspension and recommends that the National Assembly confirms Mr PS Hole’s suspension from office and withholding of remuneration.

 

Report to be considered