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ATC200626: Report of the Select Committee on Security and Justice on the Report dated 25 May 2020, on the confirmation of suspension/removal from office of Ms L B Freeman, a Senior Magistrate, Mossel Bay, in terms of section 13(4)(b) of the Magistrates Act, 1993 (Act No 90 of 1993), dated 25 June 2020

NCOP Security and Justice

Report of the Select Committee on Security and Justiceon the Report dated 25 May 2020, on the confirmation of suspension/removal from office of Ms L B Freeman, a Senior Magistrate, Mossel Bay, in terms of section 13(4)(b) of the Magistrates Act, 1993 (Act No 90 of 1993), dated 25 June 2020.

 

  1. Introduction

The Select Committee on Security and Justice, having considered theMagistrates Commission’s report, dated 25 May 2020, as tabled by the Minister for Justice and Correctional Service, on the confirmation of suspension/removal from office of Ms L B Freeman, a Senior Magistrate, Mossel Bay, in terms of section 13(4)(b) of the Magistrates Act, 1993 (No 90 of 1993), reports as follows:

  1. Background

Ms Freeman is a Senior Magistrate and the Judicial Head of Office at the Mossel Bay District Court. She is 42 years of age and was appointed to the lower court bench on 24 October 2006.  She was appointed as a Senior Magistrate at Mossel Bay on 01 May 2017.

By direction of the Magistrates Commission, Ms LB Freeman was charged with 29 counts of misconduct.  A charge sheet dated 17 November 2017 was personally served on Ms Freeman on 23 November 2017.

The misconduct charges against Ms Freeman relate to acts of dishonesty committed during the period 2015 to 2017.  In summary:

  1. In 21 of the misconduct charges it is alleged that Ms Freeman made a false or incorrect statement regarding transport claims where the kilometres claimed are more than the existing distances between the destinations;
  2. Ms Freeman indicated that she performed an inspection in loco at a location whilst no such inspection in loco took place.  She claimed for the kilometres travelled;
  3. Ms Freeman indicated in one of her transport claims that she used an Audi A4 whilst in fact she used an Uno. The kilometre tariff she claimed for the Audi is more than the tariff for the Uno.
  4. Ms Freeman, in her application for Appointment as Senior Magistrate, on the question to list all directorships and other interests in business she held during the past ten years, falsely and or unlawfully declared "N/A" (not applicable) on the application form, whilst she in fact is registered by the Commissioner of Companies and Intellectual Property as an active director and founding member in the company Southern Cape Fish Co-operative Limited;
  5. Ms Freeman, in her application for Appointment as Senior Magistrate, on the question whether she has ever been convicted of any offence or crime, stated "No" whilst in fact she had been convicted of theft and sentenced in the Magistrates Court, Potchefstroom on 06 May 1993 and,
  6. That she was negligent and indolent in the execution of her duties as a Magistrate and later as a Senior Magistrate, in not timely attending inquest cases allocated to her. The time delay in attending to these inquests ranged between 1 year and 1 year and 8 months.  She returned the matters whilst she was provisionally suspended from office, without indicating that she dealt with them.

 

  1. Discussion
    1. Having duly been served with a Notice of Hearing, the misconduct inquiry/disciplinary hearing against Ms Freeman commenced on 21 February 2018 at Mossel Bay.  Ms Freeman was unrepresented at her first appearance at the inquiry. She requested the Presiding Officer (the PO) to postpone the inquiry to 22 March 2018 in order for her to obtain legal representation. She indicated that she was under the impression that the hearing would be held at the office of the Magistrate’s Commission in Pretoria which caused her to consult with an attorney in Johannesburg. She later advised that she did not utilise the attorney in Johannesburg when she learned that the hearing was to be held in Mossel Bay. On 22 March 2018 Ms Freeman was still unrepresented and indicated that the attorney she had approached was not available on that day. She was given an opportunity to approach another attorney, apparently from Oudtshoorn, to confirm his availability on a future date.  On confirming a date on the availability of the attorney from Oudtshoorn, the hearing was postponed to 02 August 2018.  On 02 August 2018, Ms Freeman advised the inquiry that the mandate of her attorney from Oudtshoorn was terminated but that she instructed another attorney, who was present at the inquiry. He confirmed having received instructions to act at the inquiry on Ms Freeman's behalf.
    2. On the advice of the Magistrates Commission, the previous Minister of Justice and Correctional Services provisionally suspended MsFreeman and the NCOP and the NA confirmed the provisional suspension of Ms Freeman on 5 September 2018 and 25 October 2018, respectively.
    3. At the request of Ms Freeman, the inquiry was once again postponed to 12 to 14 September 2018 as she, without giving prior notice to the PO at the inquiry, had approached the High Court for a ruling that certain statements be made available to the defense at that stage.  This caused a further delay for the inquiry to commence hearing the evidence. The High Court ruled that the statements must be made available, which ruling was complied with.  Since the application by Ms Freeman was at that stage not yet finalised, it caused another postponement and further delay. The inquiry was then postponed to 21 to 23 November 2018.
    4. At the time Ms Freeman had not tendered a plea to the charges preferred against her. The Commission therefore had to identify and appoint another magistrate to preside at the inquiry. This was done and the newly appointed PO presided at the inquiry on 21 November 2018. He instructed the Officer Leading Evidence and Ms Freeman's legal team, prior to the continuation of the inquiry at its next date, to sort out any outstanding issues in dispute in order to expedite the conclusion of the matter. The inquiry was, for that purpose, postponed to 28 to 31 January 2019.  A "pre-trial" meeting took place which resulted in Ms Freeman making certain formal admissions. Ms Freeman was on 28 January 2019 represented by her attorney and counsel. She pleaded not guilty to all the charges. The majority of the Commission's witnesses testified at the inquiry during this week. On 31 January 2019, the PO postponed the proceedings until 08 to 11 April 2019 for the presenting of further evidence on behalf of the Commission.
    5. All the evidence was led during the April 2019 session of the inquiry. On 10 April 2019, the Presiding Officer postponed the inquiry to 24 and 25 July 2019 for judgment, and ordered both parties to file their respective Heads of Argument on or before 28 June and 09 July 2019. Although the Officer Leading Evidence timeously presented his Heads of Arguments, Ms Freeman's counsel failed to do so. The Presiding Officer on 24 July 2019 delivered his judgment and found Ms Freeman guilty on all 29 charges of misconduct which the Magistrates Commission preferred against her.
    6. A copy of the judgment was tabled in Parliament and is available on request.
    7. Both parties were given the opportunity to address the Presiding Officer on the imposition of a sanction. The inquiry was postponed until 12 September 2019 for the Presiding Officer to impose a sanction.
    8. Having heard both parties' submissions in this regard, the Presiding Officer on 12 September 2019 recommended in terms of regulation 26(17)(b) of the Regulations for Judicial Officers in the Lower Courts, 1994 (the Regulations) thatMs Freeman be removed from office  as contemplated in section 13(4) of the Act.  Ms Freeman was, in terms of regulation 26(20) of the Regulations, given the opportunity to lodge written representations with the Commission within 21 working days after the findings of the Presiding Officer. 
    9. A copy of the sanction imposed and the Presiding Officer's reasons was tabled in Parliament and is available on request.
    10. Ms Freeman failed to lodge her representations with the Commission by 15 October 2019, the date on which they were due. She lodged her representations with the Commission on 17 October 2019, but failed to forward a copy thereof to the Presiding Officer as required.  On 21 October 2019 the Ethics Division forwarded her representations to the Presiding Officer, whereupon the latter indicated that, although her representations were clearly lodged out of time, there is nothing new which Ms Freeman disclosed which was not considered during the hearing itself.  He therefore had nothing to add to his written recommendations which he already had made to the Commission.
    11. A copy of Ms Freeman's written representations was tabled in Parliament and is available on request.
    12. The Magistrates Commission having considered all the relevant documentation, as is required in terms of regulation 26(19) of the Regulations, including Ms Freeman's representations, the Commission, at its meeting held on 12 November 2019, resolved to recommend to the Minister that Ms Freeman be removed from office on the ground of misconduct as contemplated in section 13(4)(a)(i) of the Act. Ms Freeman's conduct as set out in the charge sheet of which she was found guilty is so serious that it justifies her removal from office.  Her conduct displays dishonesty which puts her integrity as a judicial officer in serious doubt and renders her unfit to hold the office of Magistrate any longer.

 

  1. Minister’s confirmation of suspension/removal from office on the grounds of misconduct

The Minister for Justice and Correctional Services in terms of section 13(4)(a)(i) of the Magistrates Act, 1993, confirmed the suspension of Ms Freeman on 25 May 2020 and submitted a report as required by section 13(4)(b) of the Magistrates Act, 1993, for Parliament’s consideration. The Report was tabled on 2 June 2020 and referred to the Select Committee on Security and Justice on 3 June 2020.

 

  1. Authority to Suspend/Remove from Office

 

In terms of section 13(4)(a) of the Act, the Minister for Justice and Correctional Services, 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.

 

Parliament must then as soon as 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 as contemplated the Minister shall restore the Magistrate concerned to his/her office or remove him/her from office, as the case may be.

 

  1. Impact of Ms Freemans resignation on suspension/removal from office

 

The Select Committee received a joint briefing with the Portfolio Committee on Justice and Correctional Services, on 17 June 2020.The Magistrates Commission informed the Committees that Ms Freeman had tendered her resignation on 17 June 2020. The Magistrates Commission requested the Committees to postpone the decision on her suspension/removal in order for the Magistrates Commission to obtain the necessary documentation, in respect of her resignation,and to advise the Committee on the impactof the resignation on the suspension/removal from office.

The Select Committee and the Portfolio Committee on Justice and Correctional Services met on 25 June 2020 where the Magistrates Commission provided case law to substantiate the argument that Ms Freeman’s resignation did not comply with the prescripts regarding the period of notice for resignations.

 

The Magistrates Commission advised that,

Ms Freeman would still hold the office of Magistrate until 31 July 2020 and therefore parliament would not be barred from deliberating on and determining a resolution regarding Ms Freeman’s removal from office, as she is still a Judicial Officer until the expiration of her notice period.

 

The Magistrates Commission further advised that,

“[t]here appears to be no legal impediment for the Portfolio Committee on Justice and Correctional Services and the Select Committee on Security and Justice to consider the report on Ms Freeman’s suspension and make recommendations to both Houses of Parliament in this regard.Therefore, having due regard to the information, necessary prescripts and authority cited, it is recommended that Parliament proceeds with the process to pass a resolution whether or not to restore Ms. Freeman to the office of Magistrate as envisaged in section 13(4)(c) of the Act.”

 

  1. Recommendation

Having considered the report on the confirmation of suspension/removal from office of Ms L B Freeman, a Senior Magistrate, Mossel Bay, tabled in terms of section 13(4)(b) of the Magistrates Act, 1993 (No 90 of 1993), the Committee recommends that the National Council of Provinces resolve not to restoreMs L B Freeman to the office of Magistrate.

 

Report to be considered.

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