Committee Reports on suspension of magistrates & withholding of remuneration

Meeting report

Election of Acting Chairperson

Mr Vhonani Ramaano greeted the Committee. He stated that the Chairperson, Dr M Motshekga, would not make it to the meeting and had sent an apology.

Ms G Breytenbach (DA) nominated Ms R Mothapo (ANC) to be the acting Chairperson. She was seconded by Mr S Mncwabe (NFP).

Ms Mothapo was elected unopposed as the acting Chairperson. 

Apologies

The Acting Chairperson greeted the members and asked if there were any apologies.

The Members gave apologies for Mr Inkosi E Buthelezi, Mr J Selfe and Dr MS Motshekga.

Mr Mncwabe indicated that he would be leaving at 12:30pm.  

Remarks by Acting Chairperson

The Acting Chairperson stated that there was only one item on the agenda- consideration and adoption of multiple reports by the Committee in terms of the Magistrate’s Act 1993.

The Acting Chairperson noted that the reports had not been sent electronically to committee members. She gave the committee members a few minutes to read through the reports.

She stated the order that would be followed when going through the reports. The Committee would go through the reports of Mr M J Kgomo, Ms M L Malahlela, Mr I W M Morake, Mr M D Hinxa, Ms L B Freeman, Ms JF Van Schalkwyk, Ms F K Jasone-Twala, Ms V T Gqiba, respectively.

She stated that the approach the Committee would follow when dealing with the different matters would be to first rectify the report and then move to adopt it.

Report on the withholding of remuneration of Mr M J Kgomo, Additional Magistrate, Randburg

The Committee went through the document page-by-page and the Acting Chairperson asked if the Committee wanted to rectify any part of the document.

She hoped that the Members had read it well.

There was no committee member that raised a correction.

The Acting Chairperson asked if there were any movers for adoption.

She stated that the recommendations in the report were on the back page.

Mr G Skosana (ANC) proposed that the report should be adopted unamended. He was seconded by Mr S Mncwabe (NFP).

The report was adopted unanimously by the Members.

Report on the withholding of remuneration of Ms R M Malahlela, Additional Magistrate, Delmas

The Committee went through the document page-by-page and the Acting Chairperson asked if the Committee wanted to rectify any part of the document.

Mr W Horn (DA) raised a correction in the third paragraph of the report. He expressed that the paragraph did not read correctly. The paragraph was self-contradictory in the sense that the second sentence stated - “medical reports indicated that she suffered from major depressive and panic disorder. However, her condition does not render her unfit to work.”

However, the very next sentence indicates that a report dated back to 18 October 2011 recommended that she does not have the capacity to carry out her duties of office in an efficient manner due to continued ill-health.

The way he understood the presentation by the Magistrate’s Commission from the previous week was that Ms Malahlela’s absence from office started immediately after her provisional appointment from 2004 but then at first the medical reports were of the opinion that the condition was not fatal or permanent. After 2011, the medical experts changed their opinion to say ultimately this renders her incapacitated on a permanent basis.

The Acting Chairperson sought clarity if Mr Horn wanted the paragraph to be rephrased.

Mr Horn thought that the second sentence should read- ‘initial medial report’.

Mr L Mpumlwana (ANC) said that he was not sure that the Committee should accept the matter. The report was given by the Magistrates Commission. If there were contradictions in the report, the Commission needed to correct these themselves. He asked how the Committee would know what was true and what was not true in order to make precise corrections.

He thought that the report should be taken back to the Magistrate’s Commission so that it correctly expressed its stance on the report.

He stated that he would agree with Mr Horn if the Secretary acknowledged this as their error. However, it was not for the Committee to put words in the report to push for a particular direction which was not confirmed by the Magistrate’s Commission.

If the person was discharged on the basis of ill health, this would be something else. However, the report states “… confirmed determination to withhold remuneration.” If you say a person has ill-health but then you withhold their remuneration; that is too harsh. He thought the Magistrates Commission should give a better explanation on paragraph three as opposed to the Committee making its own conclusions.

The Acting Chairperson suggested that the Committee should allow the Secretary to read into paragraph three with regards to the issue raised by Mr Horn.

The Secretary admitted that his team had made a mistake. In the original report of the Magistrate’s Commission, paragraph three and paragraph four appeared as two separate paragraphs. It was a mistake by the team to type the two paragraphs as one. From where the paragraph starts at ‘Ms Malahlela’ until the word ‘medication’ in line 5 - that is where the paragraph ends in the Magistrate’s Commissions report. The next paragraph started from the phrase “a report dated”. He thought the two paragraphs should be separated. Secondly, he thought there were dates that should have been included in the report by the Magistrate’s Commission which were not included.

Mr M Maila (ANC) asked if the Secretary agreed with Mr Horn’s proposal regarding the correction of paragraph three. If he did, then he suggested that the Committee applies the correction.

The Secretary confirmed that he agreed with Mr Horn’s proposal. However, he asked to double check with the Content Advisor.

Ms Christine Silkstone, Committee Content Advisor, agreed with the proposal. There was in fact another paragraph that the team had left out from the Commission’s report. These were paragraphs 2.5 and 5.6 of the Commission’s report which explained what happened after 2011. Her team had removed the paragraphs because they added a lot of bulk to the report. She was not sure if adding the paragraphs to the Committee report was necessary.

Mr Mncwabe expressed that he was getting more confused by the explanation of the team. He proposed that Ms Malahlela’s matter should be parked for the following meeting after the team had sat and relooked at their notes and reports. He was confused by what was meant by the report being dated back to18 October 2011. Where did that report come from? Did it come from the Magistrate’s Commission or was that the medical health report?

The Acting Chairperson asked to move to the next matter if the members agreed. She requested that the Secretary finalises the report as soon as possible so that it could sit before the Committee again.

Report on the provisional suspension and removal from office Mr I W O M Morake, Magistrate, Lichtenburg

The Committee went through the document page-by-page and the Acting Chairperson asked if the Committee wanted to rectify any part of the document.

The Acting Chairperson stated that the first correction would be in the first paragraph, where only Mr Morake’s initials were included – “The Minister provisionally suspended MR I W M from office”. She said the sentence should read “The Minister Provisionally suspended Mr I W M Morake from office”.

The Acting Chairperson was advised by the Secretary that the second paragraph was dismissal.

Mr Mpumlwana asked why the paragraph was dismissal.

The Acting Chairperson referred the Committee to the last recommendation which read - “recommends that the National Assembly resolve not to restore Mr Morake to office of Magistrate. Report to be considered”.

Mr Mncwabe proposed the adoption of the report.

Mr Skosana seconded the adoption of the report.

The Chairperson asked if there were any opposing views. She asked how many members were for the adoption of the report.

The report was adopted by all members except Mr Mpumlwana.

Report on the withholding of remuneration and the provisional suspension from office of Mr M D Hinxa, Chief Magistrate, Bloemfontein

The Committee went through the document page-by-page and the Acting Chairperson asked if the Committee wanted to rectify any part of the document.

There were no corrections made on the report.

She asked if there were any movers for the adoption of the report.

Mr Mpumlwana stated that he failed to understand the Magistrate’s Commission on Mr Hinxa’s matter. This was a very serious criminal matter. However, it seemed there was no likelihood of the DPP prosecuting the magistrate on the basis of a criminal matter. He asked how long Mr Hinxa’s suspension would be. Would it be until the DPP decides to prosecute?

 If it was true that the DPP refused to prosecute for lack of evidence, would the suspension be until the DPP decided otherwise?

He would understand if there was an investigation by the police and the DPP wanted to bring the matter to court where the person would perhaps be found guilty or innocent.

If there is an allegation and the DPP decides that he/she would not prosecute because the case did not have enough evidence, why should the person be suspended?

Was the Committee saying that the Magistrate’s Commission had the right to make their own investigation and based on that decide to suspend a person even if the investigator felt that there was not enough evidence? He expressed a desire to get an understanding of the matter.

Mr Horn stated that this type of reopening the debate on the matters was not the purpose of the meeting. The Committee resolved the previous week in principle to support all of the recommendations. The purpose of the meeting was to look at the accuracy of the reports.

Secondly, Mr Horn said that Mr Mpumlwana was not reading the report correctly. It was clearly stated that on the one hand the Directorate of Public Prosecutions is reconsidering the matter. Be that as it may, these were two separate processes.  Even if no prosecution follows certain events, the events proven in an internal disciplinary hearing could still render a Magistrate to be unfit to hold office.

If Mr Mpumlwana’s argument was to be followed to logical conclusions, the other matters where people have served a prison sentence and have returned from their prison sentences and despite that, the Magistrate’s Commission still had a duty to embark on an internal disciplinary action should also be questioned. If the argument stands it would follow that those magistrates should have been removed from office automatically by virtue of being charged by the courts, without an internal hearing.

The Committee needs to clearly distinguish between the two processes and to uphold the integrity of Magistrate’s Commission within the judiciary. The Committee should not have the stance that the matter hinged on the decisions of the public prosecution.

Mr Mncwabe expressed that after listening to Mr Horn and hearing that on previous meetings, the committee agreed to adopt the recommendations, it was difficult for him to comment. He thought that he would maybe abstain from voting on the matter.

He mentioned that he was coming from KwaZulu-Natal the previous week, where a young man was sentenced to 14 years for rape. It only appeared last week that he was actually innocent.

He had serious reservations on the matter. The Commission appeared to weigh more on the story of the complainant against the magistrate, but less was said on the Magistrates’ side of the story in the report. He noted the information about the affidavit spoken about in the report.

Mr Mncwabe stated that he would abstain from voting on the report until further information was provided.

Mr Mpumlwana said that the Committee had a right to review its own decisions if it did not consider something properly. If Mr Hinxa was not charged at all but is suspended, it would give an impression that anyone could wrongfully accuse a magistrate and they would be suspended.

He requested that the Committee review its earlier decision on the matter.

He agreed with Mr Horn that these were two separate processes. However, if a court of law proves that someone was guilty is different from someone who has been found not guilty by a court of law. It would be unjust for the Committee to then find them guilty. Mr Hinxa is unlikely to even go to court for the decision of whether he was guilty or not to be made. For the Committee to then decide to approve what the Magistrates’ Court is saying on allegations would be unjust.

The Acting Chairperson referred the Members to the paragraph that states: “the Commission resolved to conduct a preliminary investigation into the allegations of rape against Mr Hinxa. Two regional magistrates were appointed on the 17th of February 2017 to conduct a preliminary investigation…. Mr Hinxa was advised accordingly.” The report further states that “the investigating officers filed their combined report with the Commission on 12th of October 2017. Based on the evidence they obtained, the investigating officers were off the view that the evidence justified that Mr Hinxa be charged with misconduct.”

In terms of item 11, the report stated that the provisional suspension was provisional to the findings of the aforementioned officers and the Commission.”

She then asked what Members had to say with regards to what she had just mentioned.

Mr Mpumlwana asked the Committee to review its decision and engage to engage on the matter on the basis that it may result in an unjust decision.  He felt there was something the Committee overlooked that may result in an injustice. If the Committee agreed, then Mr Mncwabe would be able to come with his argument and the Committee would go over the matter.

The Acting Chairperson warned that it was for the third time that Mr Mpumlwana was speaking on the same matter.

Mr Maila found the matter difficult. He sympathised with Mr Mncwabe and suggested that he can be allowed to have another position on the matter. However, with him and Mr Mpumlwana it was different as they had attended the previous meeting on the matter.

He suggested that the Committee should support Mr Horn in adopting the report.

Mr Mpumlwana asked to speak but was declined by the Acting Chairperson on basis that the he had spoken for three times on the matter and there had been a proposal for adoption of the report.

The Acting Chairperson asked for members to vote on the adoption of the report.

Six members voted for the adoption. Mr Mncwabe abstained while Mr Mpumlwana opposed the adoption.

Report of the withholding of remuneration and provisional suspension of Ms L B Freeman, Senior Magistrate, Mossel Bay

The Committee went through the document page-by-page and the Acting Chairperson asked if the Committee wanted to rectify any part of the document.

There were no corrections raised.

Mr Mncwabe requested for the adoption of the report.

Ms Breytenbach seconded Mr Mncwabe on the adoption of the report.

The Committee voted unanimously for the adoption of the report on the withholding of remuneration of Ms L B Freeman, Senior Magistrate, Mossel Bay.

Report on the withholding of remuneration of Ms JF van Schalkwyk, Chief Magistrate, Kempton Park.

The Committee went through the document page-by-page and the Acting Chairperson asked if the Committee wanted to rectify any part of the document.

Ms Breytenbach stated that the only paragraph on page 3 was incorrect. It stated that the Magistrate’s Commission recommended that Ms JF van Schalkwyk must be withheld. The Committee cannot withhold a person. She said that the paragraph should read “... to withhold the remuneration of Ms JF van Schalkwyk”.

The Acting Chairperson asked if there were any movers for the adoption of the report.

Mr Skosana proposed that the report should be adopted with this amendment.

Mr Mncwabe seconded the adoption.

The report on the withholding of remuneration of Ms JF van Schalkwyk, Chief Magistrate, Kempton Park was adopted unanimously.

Report on the withholding of remuneration and the provisional suspension from office of Ms F K Jasone-Twala, Additional Magistrate, George

The Committee went through the document page-by-page and the Acting Chairperson asked if the Committee wanted to rectify any part of the document.

The Secretary stated that the Secretariat had separated the reports of Ms Twala into two. The first one was with reference to the provisional suspension from office while the second report was with reference to the withholding of remuneration.

There was one issue in the first report on item 8. When the Magistrate’s Commission appeared before the Committee, Ms Twala had already passed away and the disciplinary action was still pending. He expressed that he was not sure what the implications this would have on the Committee process. He thought it was important for the Commission to come back and clarify the matter.

Mr Mpumlwana thought that the decisions the committee would be taking are after the person had died and thus would be null and void. He suggested that the matter be struck off the roll.

Mr Mncwabe supported that the matter be struck of the Committee roll.

Mr D van Rooyen (ANC) stated that some issues should not be determined by the committee without checking the precedent on them. He was worried that the Committee might be overlooking due processes. He was of the view that the Magistrate’s Commission be allowed to come and clarify.

Mr Skosana seconded Mr Mncwabe and Mpumlwana on the view that the matter should be struck of the roll. However, to be more comfortable maybe consideration should be given to Mr van Rooyen’s view. The Committee should ask the Magistrate’s Commission on how such matters were closed.

Mr Horn did not think it was necessarily for the Committee to ask for advice from the Magistrate’s Commission. The Committee should instead seek legal advice from Parliament.

What was of more relevance was the report on the withholding of remuneration. If the Committee overturned the decision on withholding of remuneration, there would be obvious monetary implication for the state. The situation that the Committee needed to deal with was that the Minister and the Magistrate’s Commission had decided to withhold the remuneration for a certain period leading up to the death of Ms Twala. The Committee needed to support the Magistrate’s Commission and the Minister on the decision because it would have monetary implications for the Department in terms of what it owed the state.

Mr van Rooyen suggested that the Committee receives a comprehensive report on every aspect of the matter. 

The Acting Chairperson asked if the report would be from the Magistrate’s Commission as Mr Horn had suggested that the Committee gets advice from Parliament as opposed to the Commission.

Mr Horn did not think the Committee should be informed or guided by Commission on its duties.

Mr Mncwabe stated that he supported the view that the Committee gets legal advice from Parliament. The Commission stated that it resolved to withhold Ms Twala’s remuneration pending the results of the investigation about her fitness to hold office. He believed that the ‘investigation of fitness to hold office’ of Ms Twala never happened. To avoid the issue of undue enrichment regarding the state, he supported that the Committee seeks legal advice.

Mr Mpumlwana explained that the Magistrate’s Commission stated that it approved the suspension of Ms Twala pending an investigation. There would never be any investigation. There would be nothing ‘pending’. If the Committee agreed to the report, it would be agreeing to everything the Magistrate’s Commission had decided on before the death. He expressed that he did not think that should be the case.

Secondly, the Committee needed to get more information. When did the person pass away? It seemed that the Magistrate’s Commission were aware of when Ms Twala had died even when they presented the matter. He agreed with Mr van Rooyen’s view.

Mr Malia asked how a deceased person would be remunerated. He asked for further clarity on the matter.

Ms Breytenbach stated that a deceased person should not be remunerated.

The Acting Chairperson stated that there was a request for further information by the Members so that when the committee took a decision, it took it with a very informed decision. 

No decision was taken on this matter.

Report on the withholding of remuneration of Ms V T Gqiba, Chief Magistrate, East London.

The Committee went through the document page-by-page and the Acting Chairperson asked if the Committee wanted to rectify any part of the document.

Mr Horn stated that the recommendation did not correspond to paragraph 7 and was incorrect. He said it should read along the lines - “having considered the Minister’s report on the Magistrates Commission’s determination we resolve not to return Ms V T Gqiba to office”

The Secretary clarified that the request was for Parliament to approve the withholding of remuneration by the Magistrate’s Commission.

Ms Breytenbach proposed that recommendation should read “withholding of remuneration” as opposed to withholding of Ms V T Gqiba.

Mr Mpumlwana asked for clarity on matter of withholding remuneration.  From when would the remuneration be withheld? Was it from the time the investigations started or from the time Parliament would take a decision?

Mr Maila thought that withholding remuneration should not be retrospective. He thought it should start where the determination had occurred.

Mr Mpumlwana asked what Mr Maila meant by determination. He asked by whom the determination would be. Would it be by Parliament or by the Commissions?

The Acting Chairperson asked why Mr Mpumlwana was asking a question and answering it at the same time.

She stated that corrections had been made and asked if there were any movers for adoption.

Mr Maila moved for the adoption of the report.

Mr Horn seconded the adoption of the report.

All the members voted to adopt the report except for Mr Mpumlwana who abstained.

The Acting Chairperson stated that she would take Mr Mpumlwana to the whip for abstaining twice.

The Acting Chairperson thanked all the members.

The meeting was adjourned.