ATC240228: Report of Portfolio Committee on Justice and Correctional Services on the Confirmation of Suspension/Removal from Office of Mr Md Hinxa, Chief Magistrate, Bloemfontein on the Ground of Misconduct in terms of Section 13(4)(A)(I) Of The Magistrates Act, 1993 (Act No 90 Of 1993), Dated 28 February 2024

Justice and Correctional Services

Report of Portfolio Committee on Justice and Correctional Services on the Confirmation of Suspension/Removal from Office of Mr Md Hinxa, Chief Magistrate, Bloemfontein on the Ground of Misconduct in terms of Section 13(4)(A)(I) Of The Magistrates Act, 1993 (Act No 90 Of 1993), Dated 28 February 2024.

 

The Portfolio Committee on Justice and Correctional Services, having considered the Minister of Justice and Correctional Services’ report, dated 2 February 2024, and tabled in terms of section 13(4)(b) of the Magistrates Act, 1993 (Act No 90 of 1993), on the confirmation of suspension/removal from office of Mr MD Hinxa, the Chief Magistrate at Bloemfontein, on the ground of misconduct reports as follows:

 

1. Following allegations of sexual assault, the Magistrates Commission (“the Commission”) initiated a preliminary investigation was initiated, and charges of misconduct were brought against Mr Hinxa. After unsuccessfully trying to report the matter on several occasions at different police stations, the complainant, as a last resort, lodged a complaint with the Minister of Justice and Correctional Services (“the Minister”) on 29 June 2016 alleging that Mr Hinxa had raped her. The complaint was submitted to the Department of Justice and Constitutional Development on 2 November 2016 and, thereafter, referred to the Magistrates Commission for attention.
2. Based on the evidence gathered in the preliminary investigation, Mr Hinxa was charged with two (2) counts of misconduct.
3. On the advice of the Commission, the Minister provisionally suspended Mr Hinxa with effect from 29 November 2017. Parliament confirmed the suspension: The National Assembly resolved to confirm the provisional suspension on 25 October 2018 and the National Council of Provinces on 13 November 2019.
4. On 23 January 2018, Mr Hinxa applied for an order to review and set aside the Minister’s provisional suspension; the Commission’s decision to institute a disciplinary/misconduct inquiry against him; and declaring the disciplinary inquiry on the misconduct charges against him invalid and unlawful. The application was opposed but Mr Hinxa did not proceed further with the application.
5. In the absence of a court order preventing the Commission from proceeding, the misconduct inquiry against Mr Hinxa began on 30 October 2018. The Commission closed its case on 26 November 2020. Mr Hinxa chose not to testify or call any witnesses in his defence and closed his case. The matter was postponed to 14 and 29 January 2021, 7 June 2021, and then to 8 July 2021, when Mr Hinxa was found guilty on both charges.
6. The matter was then postponed to 9 and 10 September 2021 for both parties to address the Presiding Officer on the sanction to be imposed. However, the proceedings were postponed again to 22 and 23 September 2021 as Mr Hinxa was unwell. Mr Hinxa once again indicated that he was unwell, and the proceedings were postponed to 29 and 30 November 2021 to allow him to present on mitigation. However, the Presiding Officer permitted the Commission to place its aggravating factors on the record.
7. Mr Hinxa submitted mitigating factors in writing on 4 November 2021 but did not attend the hearing scheduled for 29 and 30 November 2021 at which the Presiding Officer recommended that he be removed from office.
8. On 24 December 2021, Mr Hinxa submitted representations on the sanction imposed to the Presiding Officer and the Commission. On 27 January 2022, the Presiding Officer indicated that she had nothing to add to her reasons for sanction.
9. On 13 October 2023, having considered all the relevant documentation, the Commission resolved to recommend that Mr Hinxa be removed from office on the ground of misconduct.
10. Mr Hinxa also instituted legal proceedings in the Free State Division of the High Court to:
11. Interdict the Commission, the Minister, and Speaker of the National Assembly from implementing the decision of the Presiding Officer in the misconduct proceedings. However, on 20 December 2023 the matter was struck from the roll due to its lack of urgency.
12. Review and set aside the decision of the Commission and the Presiding Officer. However, no relief is sought against the Minister (Third Respondent) and the Speaker (Fourth Respondent).
13. On the advice of the Commission, the Minister confirmed Mr Hinxa’s suspension from office and tabled his report, dated 2 February 2024, in terms of section 13(4)(b) of the Magistrates Act, 1993. The matter was referred to the Committee for consideration and report on 14 February 2024.
14. The Committee notes the inordinate delay in finalising this and similar disciplinary matters against magistrates and intends to meet with the Commission to discuss its handling of disciplinary matters against magistrates before Parliament rises ahead of the forthcoming general election and will also note this as an issue in its Legacy Report for the next Parliament to consider monitoring closely.

 

Recommendation

Having considered the Minister’s Report, dated 2 February 2024, requesting that the National Assembly confirm the suspension/removal from office of Mr MD Hinxa, Chief Magistrate, Bloemfontein, on the ground of misconduct, the Committee recommends that the National Assembly resolve not to restore Mr MD Hinxa to office of Magistrate.

 

Report to be considered.