ATC240228: Report of the Portfolio Committee on Justice and Correctional Services on the removal from office of Mr K Maharaj, an additional magistrate at Caledon, due to his continued ill-health in terms of section 13(4)(a)(ii) of the Magistrates Act, 1993 (Act 90 of 1993), dated 28 February 2024

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the removal from office of Mr K Maharaj, an additional magistrate at Caledon, due to his continued ill-health in terms of section 13(4)(a)(ii) of the Magistrates Act, 1993 (Act 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, on the removal from office of Mr K Maharaj, an additional magistrate at Caledon, due to his continued ill-health in terms of section 13(4)(a)(ii) of the Magistrates Act, 1993 (Act 90 of 1993), reports as follows:

 

1. Mr Maharaj was appointed as an aspirant magistrate from 1 February 2018 and, on 24 February 2020, was appointed as additional magistrate at Caledon.
    
2. On 2 March 2020, Mr Maharaj experienced ill-health while presiding in court. This has resulted in him being booked off sick from 2 March 2020 to date.
    
3. The acting Chief Magistrate, Wynberg (Western Cape) immediately reported the matter to the Magistrates Commission (“the Commission”). At its meeting of 5 May 2021, the Commission's Ethics Committee considered a Neuropsychological Assessment Report compiled by Dr K Carter, a Neuropsychologist, dated 21 August 2020 and a report dated 19 April 2021 from Dr F Lubbe, a Neurologist, and ordered that an investigation in terms of regulation 29(1) of the Regulations for Judicial Officers in the Lower Courts, 1994 ("the Regulations") be held regarding the removal of Mr Maharaj from office on account of continued ill-health.
    
4. The Commission accordingly informed Mr Maharaj of its intended investigation in terms of regulation 29(2) of the Regulations, in writing, on 24 November 2021. Mr Maharaj, however, refused to accept personal delivery of this notice. He advised that the date of his appointment as magistrate in the letter was incorrect.
    
5. A revised letter, dated 4 May 2023, was served on Mr Maharaj on 8 May 2023. He was once again notified of the Commission's order to investigate his removal from office on account of continued ill-health in terms of Regulation 29(3) of the Regulations. In compliance with Regulation 29(3) of the Regulations, Mr Maharaj was requested to submit a medical report to the Commission from a registered medical practitioner of his choice on or before 20 May 2023 that addressed the following aspects:
6. the nature and severity of illness;
7. whether the illness is temporary or permanent in nature;
8. the extent and seriousness of illness;
9. the prognosis and prospect of recovery; and
10. whether the illness will exceed the statutory entitled sick leave.

 

6. In addition, he was afforded the opportunity to comment on the matter and to state a case in response with specific reference to whether his illness is not as serious as to justify his removal from office or to suggest alternatives.

7. Mr Maharaj complied with the request and submitted an updated report from Dr Frans Lubbe, dated 13 May 2023. Based on the contents of the medical reports submitted to the Commission, the Executive Committee of the Commission formed the opinion that Mr Maharaj does not have the capacity to carry out his duties of office in an efficient manner due to his continued ill-health.

8. On 14 September 2023, the Commission furnished Mr Maharaj with a written explanation of its opinion that he does not have the capacity to carry out his duties of office in an efficient manner, and in terms of Regulation 29(6)(a)(ii) of the Regulations, forwarded the medical reports and any other relevant documents which may not have been in his possession to Mr Maharaj.

9. In terms of Regulation 29(6)(b) of the Regulations, Mr Maharaj was also afforded the opportunity to submit to the Chairperson of the Commission his written comments regarding this opinion. 

10. In his email, dated 20 September 2023, Mr Maharaj in response agreed that he is unable to continue his functions as a judicial officer. 

11. At its meeting on 1 November 2023, the Commission considered the medical reports, together with Mr Maharaj's comments dated 20 September 2023 and held the view that Mr Maharaj should be removed from office due to continued ill-health.

12. f the Commission recommends that a magistrate be removed from office, inter alia on account of continued ill-health, the Minister must suspend that magistrate from office or, if the magistrate has been provisionally suspended from office, confirm the suspension. The Minister must table a report within fourteen (14) days of the suspension, if Parliament is in session, or, if Parliament is not in session, within fourteen (14) days after the commencement of its next ensuing session. Parliament must then, as soon as is reasonably possible, pass a resolution as to whether the restoration of office of the Magistrate so suspended is recommended. After a resolution has been passed by Parliament, the Minister shall restore the Magistrate concerned to office or remove them from office.

13. In its deliberations, the Committee took note of the length of time that this and several similar matters referred to it has taken to reach finalization. The Committee intends to meet with Commission to discuss the reason(s) for the delays before Parliament rises ahead of the forthcoming general election and will include this in its Legacy Report as an item for the next Parliament to consider.

 

Recommendation

 

14. The Committee, having considered the Minister report on the suspension from office of Mr K Maharaj due to his continued ill-health, reports that it concurs with the suspension and recommends that the National Assembly resolve not to restore Mr K Maharaj to office.

 

Report to be considered