Thank you very much, hon House Chairperson. The Portfolio Committee on Justice and Correctional services having considered the Minister's Report tabled on 25 February 2020, and referred to it informing Parliament of the provisional suspension from office of Mr Desmond Nair, chief magistrate of Pretoria, pending outcome of an investigation into his fitness to hold office as magistrate as required by section 13(3)(b) of the Magistrates Act number 90 of 1993, report as follows: the charges relates to allegation that Mr Nair during the period 2016, asked for or accepted or received a special favour or dispensation or benefit from Bosasa to the approximate value of R2000 by having the security system installed and or upgraded at his private residence which may unduly influence him in the execution of his official duties or create the impression that this is the case or which can reasonably be perceived as being intended to influence him in the performance of his judicial duties or serve as a reward for performing those duties.
After conducting a preliminary investigation and having considered preliminary investigation report, the Magistrates Commission resolved to charge Mr Nair with misconduct. A charge sheet dated 29 November 2019 containing two accounts of misconducts was served on Mr Nair and his representative. In a letter dated 27 November 2019, Mr Nair was invited to show course why the commission should not recommend that he be provisionally suspended from office. Mr Nair responded and furnished the commission with his representations dated 06 December 2019. On 12 December 2019, having considered Mr Nair's representation the commission resolved to recommend that he be provisionally suspended from office in terms of section 13(3)(a) of the Magistrates Act 90 of 1993.
The commission is of the view that the allegations against Mr Nair are of a serious nature as to make it inappropriate for him to perform the functions of a magistrate while the allegations are being investigated. On 24 February 2020, the Minister on the advice of the commission decided to provisionally suspend Mr Nair with immediate effect, pending the finalisation of an inquiry to his fitness to hold office as a magistrate in terms of section 13(3)(b) of the Act has submitted a report for a consideration by Parliament.
Having considered the Report tabled 25 February 2020, the Minister of Justice and Correctional Services on the provisional suspension from office of Mr Desmond Nair, pending the outcome of an investigation into his fitness to hold office, the committee recommends that the National Assembly confirms Mr Desmond Nair's provisional suspension from the office of magistrates. I thank you. There was no debate.
Declaration(s) of Vote:
Thank you, Chair. An independent and impartial judiciary are essential elements of a constitutional democracy ...
... hon members, sorry hon member on the podium. Hon members, please, let's listen to the speaker on the podium. There is too much noise, please. Continue, hon member.
Thank you, Chair. As I said that an independent and impartial judiciary are essential elements of a constitutional democracy, specifically as the judiciary in a constitutional democracy is entrusted not only with resolving disputes between private parties but only for resolving disputes between the government and private parties. The rule of law is put into effect through a constitutional system by which powers are separated and balanced amongst the three branches of government. In this system the judiciary should function as an independent branch of government and as the ultimate enforcer of the rule of law. Important for our discussion Chair, as it has been pointed out by Jeffrey Shaman, an American writer in his book, Judicial Ethics: Independence, impartiality, and integrity. An independent judiciary can properly enforce the rule of law only if two conditions are met; firstly, it must be learned in the law and secondly, it must be characterised by impartiality and integrity.
The former Chief Justice, Sandile Ngcobo, once remarked that every actual independence and impartiality of the judiciary is essential to the successful operation of democracy. So is the public perception that courts provide an independent and impartial tribunal to resolve disputes and provide basic protection to individuals. Without public confidence in the judiciary its ability to do justice would be severely compromised. Therefore, Chair, to uphold and protect both the integrity of the judiciary and the confidence of the public in the judiciary as a whole and in respect of the individual members, our country has adopted a judicial code of conduct.
In article 4, it explicitly prohibits members of the judiciary to ask for or accept special favours or dispensations from the executive or any interest group. While we must therefore be mindful that at this stage Mr Nair is only facing allegations of accepting a special favour from Bosasa in respect of the upgrade of the security system at his private home, the seriousness of this allegation in our view left the Minister with no other option but to suspend him from the office pending a hearing into his fitness to hold office.
In order for this Parliament to play its role in upholding both the Constitution, the independence of our judiciary and its integrity, we are as a Parliament in our view enjoined today to confirm this provisional suspension. I thank you.
Declarations of votes contd:
Chairperson, we welcome the provisional suspension of Mr Nair and would welcome his permanent removal. The reality is that there is a lot happening in our judiciary, in particular there in Pretoria. This matter is proof that Bosasa did not only capture Ministers and Correctional Services officials. Bosasa did not only give President Cyril Ramaphosa money to benefit him personally. Bosasa did not only enrich President Ramaphosa's son through contracts; Bosasa also captured the judiciary.
Here we have people in the judiciary receiving financial benefits from corrupt organisations. We are starting to see a trend of judgements that do not give us confidence that the judiciary is independent. Then there are these revelations of judicial officers receiving financial benefits from companies like Bosasa that are known to be corrupt. We need a judiciary that is solid. We need a judiciary that is intact. We need a judiciary that is credible. This judiciary, with a robust legislature and accountable executive ... [Interjections.]
Hon Paulsen, please take your seat. Yes, hon member. Why are you rising?
Hon Chairperson, the member made serious allegations. Can he specifically tell the House who are these judiciary people who are receiving money? [Interjections.] Can he be specific?
I don't know if I can instruct him to be specific. Continue, hon member!
This judiciary, with their robust legislature and accountable executive is the heartbeat of our democracy and we must guard it jealously. [Interjections.]
Hon Paulsen, please take your seat. Yes, hon member.
Sorry, Commissar Nazir. No wonder he was removed as a Deputy Minister of Finance!
Michael Jackson, sit down!
Hon member, that is not a point of order. You can't do that! "Continue, hon Paulsen.
If we are going to guarantee our people the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court, we don't need judiciary officers that are bought. This is not an attack on the judiciary and we are not saying this because judgements are not in our favour. There are judgements that are for and against us. [Interjections.]
The courts are our last defence and the defence of our democracy. We cannot have a National Director of Public Prosecution and the NPA prosecute individuals based on the ruling party's factional battles or because of the individual's party political affiliation. Thank you very much. [Applause.]
Order, hon members! Let's be in the House.
Hon Chair, our judiciary is the last check- in balance against abuse of the rule of law in this country. Judicial capture and the usurpation of the rule of law for alleged financial gain by any judicial officer, no less a chief magistrate, as is the case with Chief Magistrate Nair, must be taken in all seriousness and with the veracity that it deserves.
Our judiciary must be free, fair, accessible and most importantly, impartial. If judicial impartiality can be bought, then we no longer have the rule of law; we have anarchy. Bosasa is well known and is itself under a cloud of controversy in respect of illicit and criminal activity. Whilst on that topic, we must say the IFP is concerned by the continued slow investigation in this matter, of which allegations of corruption are bound, even against some members sitting in this very Chamber. Chairperson, accordingly, the IFF fully supports the provisional suspension of Chief Magistrate Nair from office, pending the outcome of investigation into his fitness to hold the office of magistrate. I thank you.
Hon Hose Chair, let me at the very outset say that what we have in front of us currently are allegations. In terms of the Act, yes, the Minister can suspend, and I think it is the right thing to do. However, these are allegations and until the matter is concluded, it remains allegations and you are innocent until proven guilty.
The allegations against Chief Magistrate Nair are of a very serious nature. Allegations of accepting receiving special favours or benefits from Bosasa may unduly influence his judgement and actions. It is possible that it would influence him in executing his judicial duties. He is alleged to have accepted an installation of R200 000 in security upgrade at his home in Pretoria, including electrical fencing, CCTV, alarms, etc.
Yes, it is correct in terms of section 13(3)(b), the Minister is empowered to suspend a magistrate if in his opinion and on recommendation from the commission, that the conduct of the magistrate is questionable and brings the judiciary into disrepute. They need at all times to ensure a very high level of integrity. The NFP is satisfied that the allegations warrant a provisional suspension, pending obviously, like I said, the outcome of the investigation.
I think my colleague, hon Paulsen is correct: Nobody gives you anything for nothing. When they give you something today, they expect something in return. It is exactly the same thing that VBS Bank did. [Interjections.] When VBS Bank gave you money, they are expecting something in return. It is what you call a corrupt relationship. So, whether it is between Bosasa and somebody or VBS Bank and somebody, it is still a corrupt relationship. That is what actually we need to pin. [Applause.] [Interjections.]
So, let us be consistent ... [Interjections.]
Hon Shaik Emam, please take your seat. Why are you rising, hon member?
Hon Chair, I just want to say that ... [Interjections.]
What is your point of order?
You loyalist people in the ANC have captured this bloke, because he can ... [Interjections.]
that is not a point a point of order. Take your seat!
He is small enough to fit into any pocket! [Interjections.] This tiny man can fit into any pocket!
That is not a point of order. Continue, hon member.
Yes! Just to conclude on that: Let us be consistent - corruption is corruption! Manipulation is manipulation. It doesn't matter who it involves and which other side it involves. [Interjections.]
Chair, on a point of order!
Hon Shaik Emam, please take your seat. What are you rising on, hon member?
Hon Chair, can you please follow the Rules. You need to tell the member when you are switching off the microphone, and you know that! [Interjections.]
Hon member, I know. Can you sit down! Noted!
Can you please do what you are supposed to do. Thank you.
Thank you. Sit; you are noted! Continue, hon member.
Hon Chairperson, the NFP is satisfied that we are acting in accordance with the Act and supports the recommendations tabled here. Thank you very much. [Applause.]
Hon Chairperson, the ANC rises to support the report of the Portfolio Committee on Justice and Correctional Services on the provisional suspension of Chief Magistrate Desmond Nair a magistrate in Pretoria. I want to say from the onset that the ANC is happy with the contributions of the participating members of the Justice Committee. It is very clear that the EFF has always been absent in meetings, hence they are making the kind of points that they are making. [Interjections.]
Desmond Nair is the Chief Magistrate's Judicial Head Office and head of Cluster B in Pretoria. Having conducted a preliminary investigation and considered a preliminary point, ... [Interjections.]
On a point of order!
Yes, hon member. Why are you rising?
House Chair, please caution members who are making maiden speech not to be abrupt because we are going to attack back. Please caution them. [Interjections.]
Thank you very much. Thank you. Unfortunately, I don't have anybody making a maiden speech here in front of me today. Continue, hon Dyantyi.
There might be other objectives, hon Chair. Judicial authority vests in the courts, section 165 of the Constitution sets out guarantees for the independence of the judiciary, providing inter alia, that courts are independent and subject only to the Constitution and the law which they must apply impartially, without fear, favour or prejudice.
The Constitution also clearly states that organs of state, through legislative and other means, must assist and protect the courts to ensure that independence, impartiality, dignity and accessibility of effectiveness of the courts. In Van Rooyen and State, the courts emphasised the importance of judicial independence and drew a distinction between the institutional and individual independence.
Referring to the test for judicial independence, the court held that from the objective standpoint of a reasonable and informed person, a court will be perceived as enjoying the essential conditions of independence. The misconduct charges relate to allegations levelled against Mr Nair, that he allegedly asked for or accepted or received special favours or benefits from Bosasa, which may unduly influence him in execution of his judicial duties, which may create an impression or perception as being intended to influence him in the performance of his duties. In line with the audi alteram partem rule of natural justice, Mr Nair was invited to show course why he should not provisionally be suspended from office. He duly responded. Having considered Mr Nair's representation, the commission resolved that Mr Nair should be provisionally suspended. Judicial officers must be held to the highest standard of scrutiny and their conduct must at all times be beyond reproach and be of conduct befitting that office.
Taking cognisance of the seriousness of the allegations levelled against Mr Nair and the importance of the image of our judiciary, the judicial officers and the rule of law, it is in the interest of the ANC as the governing party and as a leader of society to confirm this provisional suspension. The ANC has always been committed to an independent judiciary and to strengthen judicial system.
Our national conference resolutions have reaffirmed this commitment. It is for this reason that we are also making the point to those that are still fiddling: We are sending a very strong message as the Portfolio Committee on Justice and Correctional Services that whilst the Zondo Commission is in place, we are not going to wait for its outcomes. We are going to act. This is what we are doing today. Thank you very much. [Applause.]
Question put: That the Report of the Committee be adopted, including the recommendation that the provisional suspension from office of Chief Magistrate Mr D Nair be confirmed.
No objections.
Question agreed to.