ATC180828: Report of the Portfolio Committee on Justice and Correctional Services on the suspension from the office of Mr IWOM Morake, Magistrate at Lichtenburg, tabled in terms of section 13(4)(a)(i) of the Magistrates Act, 1993 (Act No 90 of 1993), dated 28 August 2018

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the suspension from the office of Mr IWOM Morake, Magistrate at Lichtenburg, tabled in terms of section 13(4)(a)(i) of the Magistrates Act, 1993 (Act No 90 of 1993), dated 28 August 2018

 

The Portfolio Committee on Justice and Correctional Services, having considered the Magistrates Commission’s report dated 8 February 2018, as tabled by the Minister for Justice and Correctional Service, on the suspension and removal from office of Mr IWOM Morake, Magistrate at Lichtenburg, on the ground of misconduct in terms of section 13(4)(a)(i) of the Magistrates Act, 1993 (Act No. 90 of 1993, hereinafter “the Act”) reports as follows:

 

1. The Minister provisionally suspended Mr IWOM Morake from office with effect from 4 November 2010. Both Houses of Parliament approved the provisional suspension on 18 and 24 November 2010, respectively. On 24 November 2011, the Commission determined to withhold his remuneration with immediate effect and Parliament confirmed this determination shortly after. Mr Morake is currently not receiving any remuneration.

 

1. Mr Morake is the Magistrate and Judicial Head at Lichtenburg. The Commission charged Mr Morake with six counts of misconduct.

 

1. One of the counts related to the fact that the Regional Court, Lichtenburg, convicted Mr Morake on two counts of theft. On 21 July 2011, the Court sentenced him to four years’ imprisonment on each count, the sentences to run concurrently. He filed an application for leave to appeal, which application was finally struck from the roll on 27 January 2016. He was represented by Senior Counsel and argued all along that the record of the criminal proceedings against him were incomplete and had to be reconstructed. The Court refused another postponement for this purpose and revoked his bail. He started to serve his sentence on 27 January 2016 and was released at the end of 2016.

 

1. The Commission commenced with the disciplinary inquiry against Mr Morake on 11 April 2011. He requested that the disciplinary inquiry be kept in abeyance until the outcome of the criminal case against him. The Commission, therefore, served an amended charge sheet on him in March 2012 and proceeded to set down the matter for hearing.

 

1. The inquiry was set down to continue on 23 April 2012. Since then, Mr Morake has on numerous occasions requested for a postponement either to instruct an attorney or to raise funds to pay his attorney and Senior Counsel. Evidence was finally led on 28 September 2015 and the case was postponed for Heads of Argument to be filed.

 

1. Mr Morake's incarceration caused a further delay in concluding the misconduct inquiry against him. The inquiry was postponed to a provisional date in April 2016 for both parties to submit Heads of Arguments on the merits to the Presiding Officer. On 25 May 2016, Counsel for Mr Morake advised the Presiding Officer that he was not placed in funds for drafting Heads of Arguments and indicated that judgment may be delivered in his absence. Counsel, as well as the instructing attorney's, mandate was terminated.

 

1. Arrangements were made for Mr Morake to appear at the Lichtenburg Court House for both parties to address the Presiding Officer on the merits on 26 September 2016. He reported ill and did not appear. His legal representative advised the Presiding Officer on 26 September 2016 that he has again been instructed to proceed in the misconduct proceedings and to brief counsel. Although Mr Morake was afforded an opportunity to file Heads of Argument, he failed to do so.

 

1. A notice of set down for the inquiry to continue on 18 April 2017 was served on Mr Morake. He appeared in person and indicated that his former attorney of record and counsel will again represent him. The inquiry was postponed to 23 June 2017 for both parties to address the Presiding Officer on the merits. Neither Mr Morake nor counsel was present. The Presiding Officer ruled to proceed with the inquiry in Mr Morake’s absence. The Presiding Officer delivered judgment on 23 June 2017 and found Mr Morake guilty of five counts of misconduct. The Presiding Officer imposed a sanction on 16 November 2017 and in terms of Regulation 26(17)(b) of the Regulations for Judicial Officers in the Lower Courts, 1994, recommended to the Commission that Mr Morake be removed from office as contemplated in section 13 of the Magistrates Act, 1993.

 

1. Mr Morake’s whereabouts since his last appearance at the misconduct inquiry and the withdrawal of his legal team are unknown. He could not be traced and failed to submit any representations. Having duly considered all the required documentation presented to it, the Commission's Executive Committee on 30 January 2018 resolved to recommend that Mr Morake be removed from office in terms of section 13(4)(a) of the Act.

 

1. On the Magistrates Commission’s recommendation, the Minister confirmed Mr Morake’s provisional suspension from office, in terms of section 13(4)(a) of the Act.

 

Recommendation

The , having considered the Magistrates Commission’s report dated 8 February 2018, as tabled by the Minister for Justice and Correctional Services, on the suspension from office of Mr IWOM Morake, Magistrate at Lichtenburg, on the ground of misconduct in terms of section 13(4)(a)(i) of the Magistrates Act, 1993, recommends that the National Assembly resolve not to restore Mr Morake to the office of magistrate.

 

Report to be considered.