ATC210310: Report of Portfolio Committee on Justice and Correctional Services on the provisional suspension from office of Magistrate K Bodlani, an acting Regional Magistrate at Umlazi (eMlazi), in terms of section 13(3)(b) of the Magistrates Act, 1993 (No 90 of 1993), dated24 February 2021.

Justice and Correctional Services

Report of Portfolio Committee on Justice and Correctional Services on the provisional suspension from office of Magistrate K Bodlani, an acting Regional Magistrate at Umlazi (eMlazi), in terms of section 13(3)(b) of the Magistrates Act, 1993 (No 90 of 1993), dated24 February 2021.

 

The Portfolio Committee on Justice and Correctional Services, having considered the Minister’s report dated 21 July 2020, referred to it on 23 July 2020, informing Parliament ofthe provisional suspension from office ofMagistrate K Bodlani, an acting Regional Magistrate at Umlazi (eMlazi), in terms of section 13(3)(b) of the Magistrates Act, (No. 90 of 1993) (the Act), reports as follows:

 

1. Ms K Bodlaniis an acting Regional Magistrate at Umlazi (eMlazi). Ms Bodlani was appointed to the office of magistrate on 1 October 1996 and has been acting in the Regional Court, Umlazi (eMlazi), Kwazulu-Natal, as an aspirant Regional Magistrate on probation, since 4 November 2013. Ms Bodlani has mostly presided in the Sexual Offences Court, Umlazi (eMlazi) since beginning her probation as acting Regional Magistrate.

 

1. On 5 April 2019, having received and considered a number of complaints against Ms Bodlani, the Magistrates Commission’s Ethics Committee, resolved to conduct (i) a preliminary investigation in terms of regulation 26(1) of the Regulations for Judicial Officers in the Lower Courts, 1994 (“the Regulations”) and (ii) a quality assurance assessment of all the cases that Ms Bodlani had finalized over the past year or so. The investigation was conducted by a Regional Magistrate and the judicial quality assessment by an experienced magistrate.

 

1. The allegations of misconduct directed against Ms Bodlaniare that she, among others:

 

1. Sent e-mail messages to a number of her peers which contained racial remarks, allegations of racism and allegations of favouritism against the Acting Regional Court President, KZN and one of her colleagues. 
2. On several occasions, sent out e-mail messages making derogatory and insulting comments about a colleague at the Umlazi (eMlazi) Court House. The e-mail messages were copied to several persons, as well as to the Magistrate’s Commission.

 

1. During January 2019, 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, Ms Bodlaniinvited 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.Subsequently, she postponed the case, repeating her reasons. There was no valid reason for the postponement of the case. Ms Bodlaniacted 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.

 

1. Presided in Umlazi (eMlazi) case number RC 191/19S v Ndelu, in which Ms Bodlaniallowed Ms Maharaj, the attorney on record for the accused, to shout at and address Dr Badal, an expert witness for the State, in a discourteous, demeaning and rude manner. 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 Ms Maharaj’s request on unreasonable grounds.

 

1. Presided in Umlazi (eMlazi) case Number RC46/14 S v Mbuyisa, making derogatory, sexist and gratuitous remarks and displayed prejudicial conduct towards the accused.

 

1. Indicated in writing on several occasions 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, 1977) (No 51 of 1977) (“The CPA”).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, in so doing challenging the authority of the acting Regional Court President to give her official and work-related instructions. She then attempted to send the case records on special review, without submitting them to the acting Regional Court President, as instructed.

 

1. The judicial quality assessment of Ms Bodlani’s work revealed the following serious irregularities and obvious shortcomings:

 

1.             A number of her cases had to be sent on special review in terms of section 304(4) of the Criminal Procedure Act, 1977 (No. 51 of 1977) (“the CPA”) as having several serious shortcomings and having imposed incompetent sentences.

 

1. She disregarded the procedures prescribed by sections 77 and 78 of the CPA and made nonsensical findings as against those prescribed by the CPA and case law.

 

1. The provisions of the CPA, relating to child witnesses, were often not followed.

 

1. In many caseswhere the Child Justice Act, 2008 (No. 75 of 2008) was applicable, the provisions of the Act were not complied with.

 

1. The Investigating Officers informed the acting Regional Court President and the Commission accordingly and suggested that the Commission should also 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 2 August 2019, resolved to conduct the investigation. Ms Bodlani was advised accordingly.

 

1. Subsequently, the acting Regional Court President and the Investigating Officers sent a substantial number of judgments, which Ms Bodlani had delivered since her acting appointment in 2013, on special review to the High Court. The accused in these matters were charged with the rape of complainants under the age of 16 (from 6 to15) at the time of the commission of the offences.

 

1. 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”. 

 

1. 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”.

 

1. The incapacity investigation is based on what was discovered during the quality assurance assessment of Ms Bodlani’s cases since 2013. Those cases that were found on face value not to be in accordance with the principles of natural justice were identified and sent on special review. On review, all of the sentences imposed were set aside. The Investigators identified other cases for assessment once the mechanically recorded court proceedings had been transcribed. Accordingly, in the circumstances, the incapacity investigation has not yet been concluded.  Further, some of the reviews judgements are still outstanding, while others were only recently received from the Pietermaritzburg High Court. 

 

1. In the circumstances, a recommendation for Ms Bodlani’sprovisional suspension from office is based on the allegations of misconduct only. 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.

 

1. On 28 January 2020, Ms Bodlani was invited, in writing, to show cause why the Commission should not recommend to the Minister that she be provisionally suspended from office in terms of section 13(3)(a) of the Act, pending the outcome of an investigation into her fitness to hold the office of magistrate. Acting on her behalf, Ms Bodlani’s attorneys responded on 3 February 2020, denying the allegations of misconduct against her and that she is incapacitated to carry out her duties of office efficiently. The representations are mainly directed to the procedures which the Commission had followed. On 10 February 2020, the Commission wrote to her attorney clarifying the procedural position, to which there was no response.

 

1. Having due regard to the serious nature of the allegations, the totality of the information at hand and Ms Bodlani’s representations, the Commission resolved to recommend that she be provisionally suspended from office in terms section 13(3)(a) of the Act.

 

1. 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 while 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.

 

1. In terms of section 13(3)(a) of the Magistrates Act, 90 of 1993, the Minister, on the advice of the Magistrates Commission, may provisionally suspend a magistrate from office if

 

“(i) the Commission, after affording the magistrate a reasonable opportunity to be heard regarding the desirability of such provisional suspension, is satisfied that reliable evidence exists indicating that an allegation against that magistrate is of such a serious nature as to make it inappropriate for the magistrate to perform the functions of a magistrate while the allegation is being investigated; and

(ii) an investigation has been instituted by the Commission into such magistrate’s fitness to hold office.”

 

1. A report in which the provisional suspension and the reasons therefore are made known, must, in terms of section 13(3)(b) of the Act, be tabled in Parliament by the Minister within 7 (seven) days of such suspension, if Parliament is then in session, or if Parliament is not then in session, within 7 (seven) days after the commencement of its next ensuing session.

 

1. The Minister, on the advice of the Commission,decided to provisionally suspend MsBodlaniwith immediate effect, pending the outcome of an investigation into her fitness to hold office as acting Regional Magistrate and, in terms of section 13(3)(b) of the Act, has submitted a Report, dated 21 July 2020, for consideration by Parliament.

 

Recommendation

Having considered the Report, dated 21 July 2020, referred to it on 23 July 2020,on the provisional suspension from office of Ms K Bodlani, an acting Regional Magistrate at Umlazi(eMlazi), KwaZulu-Natal,pending the outcome of an investigation into her fitness to hold the office of magistrate, the Committee recommends that the National Assembly confirm Ms Bodlani’sprovisional suspension from the office of magistrate.

 

Report to be considered