ATC200902: Report of the Select Committee on Security and Justiceon the provisional suspension from office of Magistrate K Bodlani, Acting Regional Magistrate, Umlazi,tabled in terms of section 13(3)(b) of the Magistrates Act, 1993 (No 90 of 1993), dated 2 September 2020
Report of the Select Committee on Security and Justiceon the provisional suspension from office of Magistrate K Bodlani, Acting Regional Magistrate, Umlazi,tabled in terms of section 13(3)(b) of the Magistrates Act, 1993 (No 90 of 1993), dated 2 September 2020.
The Select Committee on Security and Justice, having considered the Minister’s report on 26 August 2020, tabled on 22 July 2020 and referred to it on 23 July 2020, informing Parliament ofthe provisional suspension from office of Ms. K Bodlani, Acting Regional Magistrate, Umlazi, pending the outcome of an investigation into her fitness to hold the office as Magistrate as required by section 13(3)(b) of the Magistrates Act, (No. 90 of 1993) (the Act), reports as follows:
- Ms. Bodlani, currently 59 years of age, was appointed to the office of magistrate on 1 October 1996. She has been acting in the Regional Court, Umlazi (eMlazi), Kwazulu-Natal as an aspirant Regional Magistrate since 4 November 2013. Ms. Bodlani is still an acting Regional Magistrate on probation. She has approximately 23 years of experience on the bench. She was, since the commencing of her probation period as acting Regional Magistrate on 04 November 2013, mostly presiding in the Sexual Offences Court, Umlazi (eMlazi).
- The Magistrates Commission received, and considered, a number of complaints against Ms. Bodlani.
- On 5 April 2019 the Commission’s Ethics Committee resolved:
- To conduct a preliminary investigation in terms of regulation 26(1) of the Regulations for Judicial Officers in the Lower Courts, 1994 (“the Regulations”); and
- To conduct a quality assurance assessment of all the cases finalized by Ms. Bodlani over the past year or so.
- On14 May 2019 a Regional Magistrate at Johannesburg was appointed to conduct the preliminary investigation and a Senior Magistrate at the Judicial Quality Assurance Component of the Commission to conduct the judicial quality assessment.
Preliminary investigation findings
- The allegations of misconduct against Ms. Bodlani inter alia are that:
- She sent e-mail messages to a number of her peers which contained racial remarks, allegations of racism and allegations of favouritism against the duly appointed Acting Regional Court President, KZN and one of her colleagues.
- She on several occasions acted in a manner unbefitting of judicial office by sending out e-mail messages, in which derogatory and insulting comments were made about one of her colleagues at the Umlazi (eMlazi) Court House, which e-mail messages were copied to several persons as well as the Magistrate’s Commission.
- She, during January 2019, after returning from annual leave, was to preside over a priority case, Umlazi (eMlazi) case number, RC161/18 S v Ncwane. Although the parties were ready to proceed and the witnesses present, she invited the prosecutor and the defence attorney into her chambers and discussed with them her reasons for not being ready, able and willing to proceed with the trial in the said case. The reason being that she was looking for her diary and that she needed to be emotionally stable before she could proceed with any trials. She thereafter, on record, postponed the case, repeating her reasons for the postponement. There was no valid reason for the postponement of this priority case. She acted against the principles laid down in the case flow management directives and postponed the case to 26 February 2019, indicating to the witnesses that the case might not even proceed on that day.
- She presided in Umlazi (eMlazi) case number RC 191/19; S v Ndelu. Ms. Maharaj was the attorney on record for the accused since December 2017. Ms. Maharaj, since June 2018, knew that Dr Badal, an expert witness, would be testifying in the case as the only remaining witness for the State. Ms. Bodlani allowed Ms. Maharaj to shout at, and address Dr Badal directly in a discourteous, demeaning and rude manner in open court. She failed to maintain good order in court and acted in contrast to the commonly accepted decorum of the court. Ms. Bodlani thereafter granted a postponement at the request of Ms. Maharaj on unreasonable grounds.
- She presided in Umlazi (eMlazi) Case Number RC46/14 S v Mbuyisa and made derogatory, sexist and gratuitous remarks and displayed prejudicial conduct towards the accused.
- She, on several occasions, indicated in writing that she would not comply with an order, duly given to her by her Judicial head of Office and the acting Regional Court President, KwaZulu Natal, to furnish the latter with various case records and her reasons, to be sent on special review in terms of section 304(4) of the Criminal Procedure Act, No 51 of 1977. Ms. Bodlani, in an email to the Commission, indicated that she would not comply with lawful instructions given to her by the acting Regional Court President, thereby challenging the authority of the acting Regional Court President to give her official and work related instructions. She thereafter attempted to send the case records on special review, without submitting them to the acting Regional Court President, as instructed.
Judicial quality assessment findings
- The judicial quality assessment of Ms. Bodlani’s work revealed the following serious irregularities and obvious shortcomings:
- A number of her cases had to be sent on special review in terms of section 304(4) of the Criminal Procedure Act, No. 51 of 1977 (“the CPA”) as several serious shortcomings and incompetent sentences were imposed. She was allocated to the Sexual Offences Court and dealt with many child victims being raped by adults where the prescribed minimum sentence is life imprisonment. In almost all the finalized cases which were assessed, Ms Bodlani imposed sentences where either the accused were cautioned or strongly reprimanded or wholly suspended. The suspended sentences she imposed were both incompetent and incomplete.
- She disregarded the procedures prescribed by sections 77 and 78 of the CPA and made nonsensical findings contra to those prescribed by the CPA and case law.
- The provisions of several sections of the CPA, relating to child witnesses were often not followed.
- In many cases where the Child Justice Act, No. 75 of 2008 was applicable, the provisions of the Act were not complied with.
Recommendation for further investigation into Ms. Bodlani’s capacity to carry out her duties
- The Investigating Officers suggested that the Magistrates Commission should consider conducting an investigation into Ms. Bodlani’s capacity to carry out her duties of office efficiently in terms of regulation 27 of the Regulations.
- The matter was referred to the Commission’s Ethics Committee, which, at its meeting held on 02 August 2019, resolved that such investigation be conducted. Ms. Bodlani was advised accordingly.
- The acting Regional Court President and the Investigating Officers subsequently sent a substantial number of Ms. Bodlani’s judgments, which she delivered since her acting appointment in 2013, on special review to the High Court. The accused in these matters were charged with rape of complainants which were under the age of 16 (from 6 to15) at the time of the commission of the offences.
- The reviewing Judges raised serious questions as to her suitability for judicial office and found the sentences she imposed: “incorrect for incompleteness, incompetent, outrageous, disturbing to the extreme, shockingly inappropriate and completely contrary to the very factors relevant to sentencing; deviating disproportionally from the prescribed minimum sentence; having the potential to undermine the administration of justice and fearing that the community and the public in general will lose faith in the ability of the courts to dispense fair and appropriate justice.”
- Ms. Bodlani’s mentor advised that “her mentorship took about 6 years. This was due to her failing to supply him with enough judgments to prepare her evaluation reports to the Commission in time.” He further reports that he “noted quite a lot of shortcomings in her judgments which were brought to her attention.”
- The incapacity investigation is based on what was discovered during the quality assurance assessment of Ms. Bodlani’s cases since 2013. Those, that were glaringly found, on face value, not to be in accordance with the principles of natural justice were identified and accordingly sent on special review.
- It is important to note that the Honourable reviewing Judges set aside all of the sentences imposed. The Investigators further identified other cases for assessment, once the mechanically recorded court proceedings had been transcribed. Accordingly, in the circumstances, the incapacity investigation has therefore not been concluded as yet. Further it must be noted that some of the reviewed judgements are still outstanding, whilst others were only recently received from the Pietermaritzburg High Court.
Recommendation for provisional suspension
- The Magistrates Commission submitted that a recommendation for her provisional suspension from office is based on the allegations of misconduct only. Namely that she, on several occasions, indicated in writing that she would not comply with an order, duly given to her by her Judicial head of Office and the acting Regional Court President, KwaZulu Natal.
- The Magistrates Commission submits that the incapacity investigation, in terms of regulation 27 of the Regulations, will be dealt with separately once it has been concluded, and the Investigating Officers have submitted their findings to the Commission.
- In a letter dated 28 January2019,Ms Bodlaniwas invited to show cause why the Commission should not recommend that she be provisionally suspended from officein terms of section 13(3)(a) of the Act, pending the outcome of an investigation into her fitness to hold the office of magistrate.Ms. Bodlani responded through her legal representatives on 3 February 2020.
- Having due regard to the serious nature of the allegations the Commission resolved to recommend that she be provisionally suspended from office in terms section 13(3)(a) of the Act.The Commission is of the view that the existing evidence against Ms. Bodlani is of such a serious nature, as to make it inappropriate for her to perform the functions of a Magistrate whilst the allegations are being investigated. Ms. Bodlani’s conduct tarnishes the good name, dignity and esteem of the office of magistrate and the administration of justice, is embarrassing and tarnishes the image of the judiciary at large.
- The Commission holds the view that, without anticipating the outcome of the investigation into her fitness to hold the office of Magistrate, the existing evidence against Ms. Bodlani is of such a serious nature that it would justify her removal from office, should she be found guilty of the misconduct charges which are to be preferred against her.
Minister for Justice and Correctional Services recommendation
- On 21 July 2020, in terms of section 13(3)(a) of the Act, the Minister on the advice of the Commission decided to provisionally suspend Ms.Bodlani with immediate effect, pending the finalization of an inquiry into her fitness to hold office as Magistrate and, in terms of section 13(3)(b) of the Act, has submitted a Report for consideration by Parliament.
Having considered the Report, tabled on 22 July 2020,by the Minister for Justice and Correctional Services, on the provisional suspension from office of Ms.K Bodlani, pending the outcome of an investigation into her fitness to hold the office of Magistrate, the Committee recommends that the National Council of Provincesconfirm Ms. K Bodlani’s provisional suspension from the office of Magistrate.
Report to be considered.
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