Judicial Matters A/B & Recognition of Customary Marriages A/B: Department response to submissions; Magistrate Commission on disciplinary matters; International Treaties

Meeting report

Opening Remarks

The Chairperson welcomed Members of the Committee, the Department of Justice and Constitutional Development (DoJ&CD) and representatives from the Magistrate’s Commission.

Judicial Matters Amendment Bill: Department response to submissions

Ms Virginia Letswalo, State Law Advisor, DoJ&CD, presented the written submissions received in response to the Judicial Matters Amendment Bill [B 13 - 2019]. The Portfolio Committee on Justice and Correctional Services had invited stakeholders and interested persons to make written submissions on the Judicial Matters Amendment Bill [B 13 - 2019].  The only two written submissions received were from Africa Criminal Justice Reform (ACJR) and the Congress of South African Trade Unions (COSATU).

Clause 2(b) Appointment of an NDPP:

Amendment of section 12 of Act 32 of 19982.Section 12 of the National Prosecuting Authority Act, 1998, is hereby amended—(a)by the deletion of subsection (4);(b)by the insertion in subsection (6) after paragraph(a)of the following paragraph:‘‘(aA)The period from the time the President suspends the National Director or a Deputy National Director to the time he or she decides whether or not to remove the National Director or Deputy National Director may not exceed twelve months.’’

*ACJR submitted that

Response by DoJ&CD: The amendment did not necessarily mean that the period of suspension of an NDPP or a Deputy National Director had to be 12 months, the period might be shorter than 12 months, especially in relation to investigations that were not complex. The twelve month period was proposed for pragmatic purposes.

* ACJR submitted that the authority of the President in terms of the Constitution and the NPA Act to appoint the NPDD and the Deputy National Directors posed significant risks for the NPA’s independence as the President and the Minister of Justice might appoint the entire top echelon of the NPA without any input from other key stakeholders, such as Parliament, professional bodies or the public in general. The appointment of the NDPP should not be the sole prerogative of the President and the appointment process should be transparent. There were no provisions guiding the President on the interpretation of a ‘fit and proper’ incumbent. The NPA was therefore not completely sheltered from political interference because of inadequate legislative measures in the appointment of the NDPP.

*COSATU welcomed and supported the Bill. COSATU suggested the inclusion of a clause formalising the process that was followed in the appointment of the current NPDD which entailed a call for applications, the appointment of a Judicial Services Commission type panel of non-partisan experts to interview the candidates, and the hosting of such interviews in an open and transparent manner.

Response by DoJ&CD: Noted.  A change of that nature would require a revision of policy, whereby different policy options would need to be considered.  It was not appropriate to consider amendments of that nature at that point because of the urgency of the Bill.  The Bill aimed to give effect to a decision of the Constitutional Court, which should be enacted as soon as possible. Adding other amendments to the Bill would require extensive consultation with stakeholders and the public, which would delay the Bill even further.   

ACJR also commented on the dismissal of a NDPP, Ministerial control over the prosecution service, and accountability of the NPA to Parliament. DoJ&CD noted the inputs.

Ms Letswalo added that the Parliamentary Legal Advisory Service had raised concerns about section 7(3)(c).

Discussion

Ms Sueanne Isaacs, Legal Advisor, Parliament’s Constitutional and Legal Services Office, explained that the clause said, “any law applicable in the Republic. Her concern with the wording was with “any law in the Republic”. It was too generic and too wide. The legislation should refer to specific Acts. For example, people married in “Community of Property” would also fall under the legislation, even if people had chosen to marry “In Community of Property without accrual”.

The Chairperson requested a properly worded response from the Department.

The Chairperson asked for comment from Members. The Committee was attempting to process the Bill as soon as possible as the Bill had a deadline of June 2020 and also had to go to NCOP that had its own processes of consultation to follow.

Mr W Horn (DA) commented that he fully understood the considerations in play to finalise the Bill according to the Constitutional Court deadline but it was an opportunity that would go missing if he did not ask the presenters about the appointment process. He was concerned that there was no time to go back to Parliament to ask for extension on the Bill. Even if there was a Constitutional Court requirement, the Committee should get a briefing from the Department in a timely manner so that the Committee would have time to approach the House about considering other issues in a Bill.

The Chairperson stated that it did not mean that the Committee could not go back to the issue at a later stage, especially as a number of stakeholders had raised the issue of panels, etc. There would have to be an amendment. It had been raised by all presenters in the public hearings and the Committee would have to come back to it.

Recognition of Customary Marriages Amendment Bill: Department response to submissions

Mr Makhubela Mokulubete, State Law Advisor, DoJ&CD, presented the written submissions on the Recognition of Customary Marriages Amendment Bill (B12-2019) as well as the DoJ&CD responses.

Submissions had been received from the Women's Legal Centre, National House of Traditional Leaders, Helen Suzman Foundation, the Commission for Gender Equality, COSATU and Mr Mali George Buthelezi (a private individual).

A main concern of both the Women’s Legal Centre and the Helen Suzman Foundation was that the Bill did not define "marital property", "house property", "family property" and "personal property", which was the very reason for contestation, disputes and litigation within families. The law had to endeavour to provide clarity and guidance as much as possible to ensure enjoyment of substantive equality and rights.

Response by DoJ&CD: The Department intentionally left the terminology in question to be given its meaning as contemplated in customary law, as it existed in different parts of the country.  If necessary, the courts would give meaning to the terms on the strength of evidence placed before them on what the terms meant in the particular area of jurisdiction. In that way jurisprudence would develop and adapt as customary law itself evolved.  To define those terms could lead to unintended consequences, which the Department was trying to avoid.  The issue of definitions would need further in-depth research and broad consultation.

Mr Mokulubete stressed that the Constitution recognised customary law. Section 211(3) of the Constitution provided that the courts MUST apply customary law when the law was applicable, subject to the Constitution and any legislation that specifically dealt with customary law. The Department was of the opinion that those terms should be interpreted in terms of the customary law of the persons concerned.

The Women’s Legal Centre was also concerned about the lack of education. The class of vulnerable women to whom the amendment spoke would continue not to reap the benefits if they were not properly informed, educated and empowered.

DoJ&CD response: The Department had a "Let's Talk Justice" programme that was broadcast live on local radio stations, where the Deputy Minister or officials of the Department discussed relevant topics on the development of the law. This programme was intended to teach the people about various legal issues affecting them.  A communications initiative would be undertaken by the Department once the legislation was passed.

NHTL proposed that-

(a) section 3A be inserted to provide for the appointment of traditional leaders as registering officers to be able to participate in the registration of any customary marriage;

(c) the Minister must consult the NHTL when making regulations.

The CGE expressed concern about complaints received mostly from women who report that they are turned away from registering their customary marriage if they are not accompanied by their spouses.

DoJ&CD response: The administration of those sections had been transferred by the President to the Minister of Home Affairs.

NHTL also submitted that customarily, when the husband married a wife, there was consensual agreement between two families with respect to the two individuals who were to marry and lobola was paid. It was a matter of family rather than the individual concerned, and there would be a transfer of the bride by her family group to the family of the husband. The wife was married to the husband's family (i.e. it is the family that lobola the wife), meaning that she belonged to the family, including the assets. 

DoJ&CD response: The intention of the Bill was to enable spouses to have equal in say and control over, the property they were customarily entitled to have a say and control on.  If the particular property was something that no one could own in terms of custom, then the parties would not own that property. It should be noted that the Bill followed closely the remedy provided in the judgment of the Constitutional Court, as an interim remedy and which was, for all intents and purposes, the law at that point in time.

COSATU supported the Bill as it would eliminate an unfair and serious form of discrimination. It did not have any proposed amendments to the Bill and urges its speedy passage by Parliament without further delay.

Mr Mali George Buthelezi suggested that communities should marry according to their customs. Each man should marry not less than five wives and should not pay lobola. If there was love the husband and the wife's sides had to negotiate for the preparation of the marriage because lobola was the cause of people not getting married and cohabiting as they did not have cows or money to pay lobola. A customary marriage without paying lobola would be useful because it would address the problem of the so-called mistresses, and children born out of marriage (“illegitimate children”) and sexually transmitted diseases.

DoJ&CD response: The law cannot impose how many wives a man can marry and cannot do away with the lobola payment. A man was entitled to marry any number of wives he wished, without any restriction or compulsion. On the other hand, the two families of spouses negotiated the lobola with its terms, and they could agree on no payment of lobola without that being imposed by legislation.

Various other recommendations were made in the submissions but there was nothing that DoJ&CD believed warranted a change to the Bill.

Discussion

Adv S Swart (ACDP) noted the comments on the definitions and the DoJ&CD’s response that intentionally left the terminology open so that courts could give meaning to each case. Parliament needed to determine whether to define the terms or not. He saw that it would need more in-depth research and broader consultation but he needed to be convinced that there was no need for definitions. He would have expected that to be the position of the House of Traditional Leaders but they had not raised the matter and seemed content that the courts developed jurisprudence on the matter. He asked for a comment on that point.

He noted that the Commission for Gender Equality raised the issue of the need for the consent of the first wife for the man to take another wife and how desirable that position was. The response by DoJ&CD was that the case applied to Xitsonga culture only. He requested a comment on the matter.

Adv G Breytenbach (DA) referred to the input by the Traditional Leaders: “The wife gets married to the husband's family (i.e. it is the family that lobola the wife), meaning that she belongs to the family, including the assets.” She did not understand that terminology and asked for help in that matter. One human being could not belong to another human being. 

She also asked, in reference to the additional wives that a man could take, what the position was with women who took more than one husband.

Ms J Mofokeng (ANC) asked about the comment by the Helen Suzman Foundation in relation to customary law: “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.” The Helen Suzman Foundation was in South Africa – why not just say “African people”? And why use the term “those” people”. She found such terminology unacceptable.

Ms Mofokeng referred to a comment by the House of Traditional Leaders. What worried her was the reference to a “homestead consists of a number of houses”. It seemed that customary marriages were for rural women only. What about women living in the suburbs? It would eventually happen that there would be customary marriages in the suburbs and she did not know how that would be solved.

She also noted that submission points number five and six by the House of Traditional Leaders spoke of calling one of the lobola negotiators called to court. What if they were all dead? What would be done? There should be a provision for a situation where all the lobola negotiators were dead.

In reference to the CGE comment about a provision being inserted that stated that consent had to be received from the first wife, Ms Mofokeng asked why only the first wife, and not all the wives, was involved in giving consent? It was often a case that when the first wife did not like the second and third wives, she would negotiate for another wife so that the other two could be suppressed. Why should only the first wife give consent? She liked the response of the Department that the issue had to be researched and consulted on comprehensively. It was important because DHA was getting into those matters and it was one of the things that was a challenge in customary marriages.

Ms N Maseko-Jele (ANC) was covered on the lobola matter but the issue of one person going to court to testify about the lobola was problematic. Lobola was no longer just between families. Nowadays, lobola negotiators could be friends or people hired from a business set up to do lobolo negotiations. She had a practical example of such a case. That had to be addressed.

Ms Maseko-Jele noted that the Women’s Legal Centre had a question about educating the community. She liked the DoJ response but the Women’s Legal Centre had been referring to the Department of Home Affairs and so that Department had to be consulted.

Mr Horn added his voice to others expressing concerns about the lack of definitions. The Department and legislators had to respond to that. Parliament had a responsibility to make laws that were clear and understandable. Laws could be found invalid or void if they were too vague. He suggested that if it was the Department’s stance that the terms had different meanings in different communities, then something had to be put into the Act to state what the terms meant in each community. It could not be left up to the courts to get to the point that in Community A, the terms meant a certain thing and in Community B, they meant a different thing.

He also referred to the CGE comments on consent by the first wife, where the Department had taken a stance that it was applicable only in respect of one set of customary rules in one specific community. The Committee needed legal advice as to whether the Constitutional Court, in line with its right and duty, expected the customary marriage laws to be developed in line with the Bill of the Rights and the requirements of the constitutional right to equality and non-discrimination. He had a problem with the Department saying that it was applicable only to one community. The Concourt might have expanded and developed customary law in general in line with the Bill of Rights.

Response by DoJ&CD

Mr Mokulubete suggested that he could group the comments in relation to the issue of different cultures in the Republic. If the Bill took “house property” to mean something specific, it would be applicable to all cultures and the drafters had to avoid that. The court should interpret the definition in the light of what was presented to the court. Maybe, after research, the Department would be able to say what it meant in different cultures.

The Chairperson asked if the Department had researched the issues relating to the definitions.

Mr Mokulubete replied that there was a research unit in the Department which did extensive research and could consult with the various cultural groups to determine how a community determined “house property”.  There were seven cultural codes in the country and amongst those, there were clans that practised their custom differently from the rest of that culture. A definition would impose a specific definition on a particular culture and that might be in conflict with the traditional practice. The research had not been done. It might require extensive research and even consultation to come to an acceptable definition.

Ms Theresa Ross, Principal State Law Adviser, DoJ&CD added that the Law Commission was looking at marriage issues with the Department of Home Affairs (DHA) and most of the issues raised by the Committee would be addressed, such as consent, polygamy and so forth but the customary marriage regime had been referred to DHA and DoJ&CD was left with the propriety consequences of the marriage. Everything else would belong to DHA. She suggested that DoJ&CD could put the issue of definitions forward to those currently doing the research for the Law Commission and DHA.

Mr Mokulubete stated that, in connection with the consent of first wife, the court was concerned with a particular cultural group and had only dealt with the matter in relation to that cultural group, the Xitsonga group. In the case, different positions had been presented to the court. The testimony given there was that the consent of only the first wife was a requirement. There was no requirement for the first wife to give consent in other cultures, or even for other wives to give consent. That would clash with other cultures as in some, there was no requirement for consent, although it was necessary to consult. The second and subsequent wives were notified by the first wife and not the husband. It was her duty to inform them. If another wife had to notify other wives, then the Bill would be doing away with the right of the first wife to inform them. The court had confined itself to the Xitsonga culture.

He noted that Adv Breytenbach was referring to the submission by the House of Traditional Leaders which said that a wife belongs to the family. The Department had not said that – that was the knowledge of the Traditional Leaders and DoJ&CD could not challenge or criticise that. The Department was attempting to give effect to the decision of the court.

Mr Mokulubete noted that the other issue raised was that of a husband marrying more than one wife and not the other way round. Adv Breytenbach had raised the point at the first session and the Deputy Minister had said that there was no culture in the RSA that allowed a wife to have more than one husband. It was the other way around. That was the way the tradition was and to marry more than one husband would not be a customary marriage but a modern marriage.

Mr Mokulubete’s understanding of the Helen Suzman Foundation submission was that a certain cultural practice was practiced by a particular group and could not be the practice of another group, unless it was the same, which it was in many cases. The Act was restricted to the cultures of RSA and could not deal with cultural practices outside of the Republic. The Bill and the Act itself did not differentiate between spouses in rural or urban areas. A witness having passed away before the affidavit was submitted was the same thing as an affidavit not being there. A person could just appear in court.

(Members were confused by the response.)

Mr Mokulubete stated that he could only respond to educational drives in respect of what DoJ&CD was doing. He was not at liberty to answer for another department but departments did communicate.

The Chairperson asked him to clarify his statement about the affidavit.

Ms Ross explained that the presentation of an affidavit was dependent on the proceedings. Sections 5 and 6 stated what the court might do. It was at the discretion of the court and not an obligation. When a person in the negotiations had passed on, the court would take a different approach.

Mr Dyantyi said that the clean-up of the definitions was necessary. He was not impressed. As a Xhosa man, he could say that a lobola negotiator was not a witness in the lobola negotiations – there were no witnesses. All were directly involved. The Committee should ask for more work to be done to avoid distortions in the definitions.

The Chairperson agreed that more work was required. The clause by clause presentation of the two Bills would take place the following week. The team was being given that time to deal with definitions and all outstanding issues. By 20 March 2020, the two Bills had to be debated in the House.  He proposed that from the following week until closure for the term, the Committee would deal with legislative matters – public hearings and finalisation of Bills. He thanked the legal advisors for the work done.

The Committee agreed to the proposal by the Chairperson that the Committee focus on the legislative matters.

Magistrate’s Commission

The Chairperson informed the Committee that the representatives of the Magistrate’s Commission would brief Members on the situation with regards to two magistrates: Ms Meyburgh in respect of a medical concern and Mr Nair who had allegedly received security equipment from Bosasa in the amount of R200 000. Thereafter, they would brief the Committee on the remuneration of magistrates. The President had made a certain determination on remuneration that had to be approved by the National Assembly as soon as possible. The Committee had to prepare a report for the National Assembly as soon as possible.

Mr Dyantyi asked the Chairperson when the systemic issues at the Magistrate’s Commission would be dealt with. The briefing was only on the two specific magistrates. The following day the Committee might be told the name of another magistrate but they would not understand the systemic issues at play. When was the Committee going to be briefed on the systemic issues?

The Chairperson agreed that the Committee was dealing with only two magistrates that day and would receive a briefing on the systemic issues at the Magistrate’s Commission at a future briefing.

Adv Cassim Moosa, Chair: Ethics Committee, Magistrate’s Commission, stated that on the draft agenda, the Commission had been required to brief the Committee on the matter of the delays in the disciplining of magistrates. He therefore could give the Chairperson the comfort that he was ready to address the Committee on the matter but he had observed that the agenda was quite strenuous that day. He was quite prepared to return to the Committee and make the presentation on another occasion. He had no aversion to such an arrangement. He had a document on the matter and could disseminate it in preparation for the next occasion. That would allow Members to engage in the document before the meeting to facilitate a fruitful engagement on the matter.

The Chairperson stated that Members had the report on Ms Meyburgh and the letter regarding the suspension of Mr Nair but the document that Adv Moosa was referring to was the one that had sparked Mr Dyantyi’s comments.

Adv Moosa stated that if the Chairperson wanted him to, he could refer briefly to the systemic issues.

Mr Dyantyi added that Adv Moosa had not circulated the documents on the systemic issues and he could not address documents that the Members had not seen beforehand. Today he could dispense with the two cases and return to address the systemic issues. The Members wanted to engage with the documents before the Committee dealt with the real issues.

The Chairperson agreed. The main issue was having documents in advance of a meeting. Adv Moosa should discuss the two magistrates as the Members had read those documents.

Briefing by the Magistrates Commission

Adv Moosa briefed the Committee on behalf of the Commission. He was supported by Adv Johannes Meijer of the Magistrate’s Commission.

Ms I Meyburgh, Additional Magistrate in Johannesburg

Adv Moosa stated that Ms I Meyburgh, additional magistrate in Johannesburg, had been appointed by the Minister as a magistrate with effect from 1 November 2015.

Adv Moosa refreshed the memory of the Members regarding the legislative requirements of that particular matter. What the Commission required of the Members was a resolution not to restore Ms Meyburgh to office.

In terms of the Magistrate's Act, No. 90 of 1993 section 13 (3) (a): The Minister may suspend a magistrate on the recommendation of the Commission and, subject to the provisions of this subsection, remove him from office- (i) for misconduct; (ii) on account of continued ill-health; or

(iii) on account of incapacity to carry out his duties of office efficiently.

(b) A magistrate so suspended from office shall receive, for the duration of such suspension, no salary or such salary as may be determined by the Minister on the recommendation of the Commission.

(c) A report in which the suspension of a magistrate and the reason therefor are made known, shall be tabled in Parliament by the Minister within 14 days after such suspension, if Parliament is then in session, or, if Parliament is not then in session, within 14 days after the commencement of its next ensuing session.

(d) If Parliament, within 21 days after the report referred to in paragraph (c) was tabled in Parliament, passes a resolution in which the restoration to his office of a magistrate so suspended is recommended, such magistrate shall be restored to his office accordingly.

(e) If Parliament does not pass a resolution in accordance with paragraph (d), the Minister shall confirm the suspension and remove the magistrate concerned from his office.

Adv Moosa explained that the Minister, on the advice of the Magistrates Commission, may provisionally suspend a magistrate from office if the Commission was satisfied that reliable evidence existed indicating that an allegation against that magistrate was of such a serious nature as to make it inappropriate for the magistrate to perform the functions of a magistrate whilst the allegation was being investigated, should an investigation have been instituted by the Commission into the magistrate’s fitness to hold office. The report, which had to set out the reasons for the suspension, had to be tabled in Parliament by the Minister within seven days of the suspension. According to the Magistrate’s Act, Parliament had to confirm the suspension.

He added that, in respect of the requirement that a report had to be tabled in Parliament within 14 days, the report had been tabled on 26 November 2019 by the Minister. Parliament now had to pass a resolution on whether or not to restore Ms Meyburgh to her position as magistrate.

The Commission requested Parliament not to restore her because her ill-health meant that she could not do her duty as a magistrate. As at 14 March 2018, statistics showed that she had been employed 851 calendar days and was absent for 651 calendar days, 75% of the time. An additional challenge was that, during the period of time she was on probation, she had been absent so often that there could not be a report on her performance as a magistrate. The issue was two-pronged. Firstly, Ms Meyburgh had not performed her duty, and secondly, she remained on probation. Her medical practitioner stated that her bi-polar condition was a biologically inherited condition and not psychological. She was severely impaired and unable to function in any professional capacity. Her prognosis was getting worse. She was unable to return to work. The Commission recommended that she not be restored her to office.

The first time that the Commission became aware of the situation was on 13 October 2017. In 2018, she had not presided at all. She had not rendered a service since 2015 and she had been remunerated every month. The delay in addressing the matter was also a result of a legal representative, a family friend acting on her behalf, Adv Botha, who had delayed matters by not meeting deadlines. She herself did not have any contact with the Commission. She had cleverly used the system because she had been given the opportunity to resign but she would not resign because she was getting a benefit from the Professional Provident Society (PPS) equivalent to her full salary each month. The situation was dire and appalling. She could not function or render service. Adv Moosa respectfully requested that she not be restored to office.

Discussion

Adv H Mohamed (ANC) was worried about the matter. He heard what the Commission was saying but it could have done more. The Department had, at one stage, overpaid Ms Meyburgh by almost R450 000, in addition to her not being of service, and yet only R10 000 per month was being deducted from her salary to repay the amount.

He noted that the Commission was asking to withhold her remuneration from the date of suspension. Was the procedure required? It seemed nonsensical, unless the disciplinary procedure required it. Just because someone had a legal representative that did not mean that one did not investigate the person. It seemed that the Magistrate’s Commission had been over-cautious. In 2015 she had a six-month period probation that had extended to 2019. How many other matters were like that? The situation brought the image of the courts into disrepute.

The Chairperson asked for a suggestion from Adv Mohamed.

Adv Mohamed supported the Commission’s proposal but queried how it had allowed this to happen.

Ms Maseko-Jele said that the Commission had to explain the systematic implications of how it had happened. In her view, Ms Meyburgh had never existed in DoJ&CD as she was never permanently appointed following probation. There were mischievous elements in the process. She and her advocate friend had missed deadlines and showed disrespect. Was she going to be paid any benefits? She could not get anything out of the system. She had benefitted without doing work and it was setting the wrong precedence. If they thanked her for what she had done, it would cause others to query the system.

Mr Dyantyi said he and Mr Horn served on the Magistrate’s Commission. The Commission had four committees and they did not sit on the ethics committee which was dealing with the matter. When issues of ethics issues were raised, they recused themselves.

He noted that, in the report, the President was suspending Meyburgh, and the Commission stated

Parliament should not restore her. That was vague. He would have thought that the report, signed by the Minister, would state that she was being removed and that Parliament should support that. The report had to mean what they were saying. If the matter went to court, there would be a procedural problem.

The Chairperson requested Adv Moosa to respond to Mr Dyantyi’s concern before he continued.

Mr Johannes Meijer explained that the Commission recommended that Ms Meyburgh be removed from office based on a report on an investigation that was conducted in terms of Regulation 29 which dealt with continued ill-health. In terms of the Act, the Commission advised the Minister and recommended that she be removed from office. That was the report that had been provided to Members. The Minister had then to suspend her on the recommendation. Parliament had to pass a resolution not to restore her and then the Minister had to remove the magistrate.

Adv Mohamed attempted to clarify the issue. The Minister had suspended the magistrate just as the President had dismissed Adv Jiba and Parliament had to confirm. Was the Commission requiring the confirmation of the suspension? Was Parliament confirming or removing? Was the dismissal process another process? Was it saying that in the report?

Mr Meijer referred to the Minister’s powers in the Magistrate’s Act. Section13(a)(4) stated that the Minister must suspend a magistrate, which he had done, but it had to pass Parliament and Parliament had to restore her to office or not. If Parliament agreed not to restore her, then the Minister would dismiss her.

Mr Dyantyi said that the report recommended removal. That was the point that he was making. He queried whether Parliament would have restored just on the basis of a report such as the one that the Committee had received. Suspension was not removal. Parliament could not restore if she had not been removed from office - unless suspension meant removal.

The Chairperson sought clarity if Mr Meijer was requesting Parliament to remove or to restore.

Adv Breytenbach referred the Members to the attached page 10 of the report which contained section 4(a), (b), (c) and (d). She suggested Members read it carefully, especially 4(c)

Mr Meijer explained that the Commission recommended removal but the Minister had suspended and only after Parliament had passed a resolution not to restore the magistrate, could the Minister remove the person from office for misconduct or ill health.

Adv Swart stated that the wording of the Act was being followed but the wording in the Act was not very clear.

Mr Dyantyi thanked Adv Breytenbach for pointing out the provision. He noted that the Committee was also dealing with the provisional suspension of Nair. The Act had to be cleaned up.

His second point was that it was well and good to raise the number of days that Ms Meyburgh was absent but the omission and commission was another thing – someone had not done something. In 2015 in December, she was absent for 21 days and in 2017, she was absent for seven months. The report said, except a few a few days – that was inaccurate. The exact number of days that she was present had to be indicated. However, someone was accountable for not addressing the matter. He noted that the report did indicate that in 2017 she was present for 14 days in the whole year. The Committee had to act against Meyburgh but also against the person who had not taken responsibility and action against Ms Meyburgh. There might well be other similar cases. On 3 May 2018, the Chief Magistrate had informed the Commission. That was what he wanted to dig deeper into. There had to be consequences for those responsible for not acting.

The Chairperson requested that those issues be dealt with when the Committee dealt with the systematic issues.

The Committee agreed.

The Chairperson put it to the Members to determine whether Ms Meyburgh be restored or not.

Mr Meijer pointed out that the wording was “agreed not to restore her”.

The Chairperson asked if the Committee supported restoration.

Mr Mohamed proposed that the Committee did not support restoration.

Ms Maseko-Jele seconded the proposal that the magistrate not be restored.

The Chairperson asked for any contrary views.

Mr Dyantyi asked that the Act be looked at in terms of legislative review.

The Chairperson agreed.

Resolution: The Committee unanimously agreed that Ms I Meyburgh, Additional Magistrate in Johannesburg, not be restored to the position of magistrate.

Mr Desmond Nair, Chief Magistrate in Pretoria

Adv Moosa asked the Committee to confirm the provisional suspension of Mr Desmond Nair of Pretoria. Parliament was required to confirm the provisional suspension of Mr Nair whom the Minister had provisionally suspended. Bosasa employee Richard le Roux had declared at the State Capture hearing in January 2019, in testimony before the Zondo Commission of Inquiry, that Mr Nair had received a R200 000 upgrade to the security system from Bosasa at his home without paying for it. Immediately following the allegation, the Magistrate Commission had deliberated on the matter in February 2019 and requested that a Regulation 61 investigation be carried out. Two investigators were appointed owing to the high profile and public nature of the matter: Retired Judge Pretorius and the Regional Court Chairperson from North West. The Commission wanted to address the matter speedily but the witnesses would not make themselves available and Mr Nair changed legal representatives three or four times and was currently represented by the Public Service Commission. The allegations were serious. Mr Nair said that he had paid R50 000 after an agreement with a high ranking employee of Bosasa. During the course of the investigation, that ipsa dixit agreement was denied by the gentleman concerned.

Adv Moosa stated that the allegations were of such a serious nature, it was unsuitable for Mr Desmond Nair to remain in office. He had been Chairperson of the Chief Magistrate’s Forum but had stepped down and been replaced. He was also a member of the Magistrate’s Commission but he had requested to be put on backburner until the enquiry was concluded. The Commission had determined to act as speedily as possible as it did not want to be seen as protecting one of its own. The recommendation had been made to the Minister in October/November 2019 but the Minister had been unable to table the report in Parliament at the time.

In terms of the Act, the Commission was asking Parliament to confirm the provisional suspension of Mr Desmond Nair, pending the outcome of the disciplinary hearing against him.

Discussion

The Chairperson noted that the issue was much clearer in that case.

Adv Mohamed noted that the Committee was dealing with section13(3)(b) of the Magistrate’s Act. He supported the provisional suspension of the magistrate. The Committee would have an opportunity to engage in the matter when the Commission returned with the report.

Ms Maseko -Jele supported the proposal. It was a move in the right direction. It would set a precedent that even those not yet identified would be dealt with in that way so that Parliament was seen to be fair to everyone.

Ms Mofokeng supported the proposal but hoped that the matter be finalised within six months. The Committee had been talking about it for six months to a year.

Mr Dyantyi supported the entire ANC contingent. He noted some quietness in the Committee. He asked about the status and the progress of the investigation. He added that there was a confusion of two dates in the report. The date of 12 Nov 2019 seemed to be the right one but the report also referred to 12 Dec 2019 in point 3.3. Was that a misprint? Could the date of the meeting of the Commission be corrected

The Chairperson noted that the Commission would correct it.

Adv Swart stated that the ACDP also supported the measure.

The Chairperson stated that the following day, before the briefing by the National Director of Public Prosecutions, the Committee would adopt the reports on the two magistrates.

Adv Breytenbach informed Mr Dyantyi that if one agreed with something it was not necessary for everyone to say so if that was the flow of the conversation. One only said something if one disagreed. Not everyone had to stick a hand in the air and repeat the same things. She stated that the DA supported the proposal but it was not necessary to repeat the same statements as every other Committee Member.

The Chairperson commented that he should receive an extra salary for looking after Adv Breytenbach and Mr Dyantyi.

Resolution: He confirmed the resolution that the Committee unanimously agreed that Mr Nair, Chief Magistrate of Pretoria, be suspended.

Briefing on salary increases for magistrates

The Chairperson stated that the Committee would receive a briefing on salary increases of 2.8% and 4.5% as determined by the President. The Committee was required to approve.

Adv Moosa informed Mr Dyantyi that Mr Nair had been suspended only the previous week. The Commission had determined that an officer be appointed by the end of the month as the Commission was committed to getting through the matter as soon as possible.

Adv Moosa stated that the document had just been disseminated to the Committee and he needed to converse with Mr Meijer on the matter.

The Chairperson stated that if Adv Moosa was not conversant with the document, the Committee would address the matter of the extradition reports.

Extradition Treaty Reports

The Chairperson read the report of the Portfolio Committee on Justice and Correctional Services on the Treaty between the Government of the Republic of South Africa and the Government of the Republic of Bangladesh on Mutual Legal Assistance in Criminal Matters. The report recommended that the National Assembly approve the treaty.

Adv Breytenbach said that she had no objection in principle but would take it to the DA caucus.

Adv Swart informed the Committee that the ACDP agreed to the approval of the treaty.

Adv Mohamed stated that the ANC agreed to the approval of the treaty as the ANC was determined to fight crime and international crime.

The Chairperson stated that the Committee would await a response from Adv Breytenbach but that the report was adopted by a majority decision.

The Chairperson read the report of the Portfolio Committee on Justice and Correctional Services on from Treaty between the Government of the Republic of South Africa and the Government of the Republic of Bangladesh on Extradition. The report recommended that the National Assembly approve the treaty with Bangladesh on Extradition.

Adv Breytenbach stated that she had no objection in principle but would take it to the DA caucus.

Adv Mohamed stated that ANC supported the treaty which was long overdue.

Adv Swart supported the approval of the treaty on Extradition.

The Chairperson noted that the Committee would await a response from Adv Breytenbach but that the report on the treaty on Extradition between SA and Bangladesh was adopted by a majority decision.

Adv Breytenbach requested that the Treaty reports in the House be limited to a report by the Chairperson and no discussion be engaged in.

The Chairperson stated that would be a progressive decision and agreed that the matter in the House would be limited to a report by the Chairperson.

The Committee approved.

Concluding remarks

The Chairperson informed the Committee that the matter of Magistrate increases had to be dealt with by the Department or the Minister and so the matter would be postponed to the following day.

Adv Mohamed asked when the matter would go to the House.

The Chairperson stated that it should go to the House on the following Tuesday. He noted that there had to be a proper briefing on the salaries issue so the Committee would deal with this the following day. The House should not take the matter lightly.

He informed the Committee that the matter of systemic issues in the Magistrate’s Commission would be addressed fairly soon. The Commission would be informed of a suitable date.

The meeting was adjourned.