Magistrate’s suspension

Meeting report

The Chairperson said the delegation from Ghana had not confirmed their attendance, and he therefore assumed they would not attend the meeting. On the agenda item relating to the suspension of magistrate Ms VT Gqiba, it had come to his attention that she had requested to take early retirement.

Mr L Mpumlwana (ANC) requested the Committee to stand down on the issue of Ms Gqiba

The Chairperson asked what Mr Mpumlwana meant by “standing down” on the matter, adding that he should use language that everyone could understand. Did standing down mean that the Members would take a break and come back to deal with the matter at some point?

Mr Mpumlwana responded that standing down meant that the Members would postpone the matter.

Mr G Skosana seconded the proposal to postpone the matter until next year. 

Adv G Breytenbach (DA) opposed the proposal, based on the legal opinion that had been received. It seemed that the Committee had already delayed with respect to the matter. The committee had a duty to deal with matters as they came up, and there was absolutely no reason why the matter could not be dealt with on that day. The fact that Ms Gqiba had requested to take early retirement had absolutely nothing to do with the Committee. The Committee had a duty to do its job and the magistrate in question was a disgrace to the bench. The Committee would be failing in its duty if the matter was not dealt with on that day.

Mr S Swart (ACDP) apologised for missing the other meetings, and agreed that it was important to attend to the matter right away. It was the justice system as seen in the public eye -- and this matter was in the public eye. The Committee could not postpone the matter. He noticed from the records that Ms Gqiba would reach retirement age in August 2018, and he believed that the Committee should continue with the process. There were merits that came with the recommendation from the Minister, and he suggested that the Committee consider that.

The Chairperson said that justice delayed, was justice denied. However, he also took the view that when dealing with matters of this nature, the Committee needed to look at the consequences that were involved in the situation.  He was only chairing the meeting -- he was not the judge nor the magistrate -- and therefore he would put the matter to a vote as to whether to postpone the matter or attend to it immediately.

Mr S Mncwabe (NFP) asked for clarity before a vote took place. He wanted to know from the legal representative present at the meeting if there was any harm if the Committee proceeded with the matter, knowing that there was an application for early retirement.  Alternatively, was there any harm with postponing the matter, pending the application for early retirement?  The clarity was important, because it might embarrass the Committee if a decision was taken that was in conflict with the standard rules of early retirement.

The chairperson invited the legal representative to respond to Mr Mncwabe’s question.

Mr Nathi Mjenxane, Parliamentary Legal Adviser, said that the legal provision directing the Committee to act in this matter made the use of the terminology “must”, so the Committee was obligated to act. It was mandatory, not discretionary. However, it was a decision of the Committee as to whether they wanted to deal with the matter at that moment, or at a later stage. In his opinion, the final arbiter on this matter came from the court decision resulting from the case. However, that did not prohibit the committee from hearing the matter.

The Chairperson asked if the provision made it mandatory to proceed. Did it prevent the Committee from postponing the matter? He added that postponing the matter did not mean that they would not proceed -- it only meant that the matter would be dealt with at a later stage.

Mr Mjenxane said that the Chairperson was correct. If the Committee wanted to schedule the matter for another meeting, it was the discretion of the Committee to do so. All the provision stated was that the Committee must act after the issue had been tabled by the Minister in terms of section 13.

The Chairperson reiterated that the legal opinion did not stand in the way of postponing the matter for another time. He asked if Mr Mncwabe had been clarified by the response given.

Mr Mncwabe said he was not entirely clarified, because his concern was with the developments arising from the application for early retirement. Did the early retirement application come with any hindrances? 

Adv Breytenbach responded that there was no hindrance to dealing with the matter. In fact, everything pointed to the fact that the Committee should deal with the matter. She stressed that they were part of the Committee on Justice and Correctional Services, so they could not be offering cosy little hideaways for magistrates who found themselves in the position that Ms Gqiba found herself in. It was an absolute disgrace, and the Committee should deal with the matter on that day.

The Chairperson said that there were many other matters which ran for years in the courts, but justice was still served and life still went on. Why was this matter an exception?

Ms Breytenbach said that whatever happened in the courts had nothing to do with this Committee. The Committee was required to deal with the recommendation from the Minister, and that was the Committee’s job. It was their duty to deal with the matter. She added that postponing the matter for next year would be “kicking for touch,” which was a disgrace.

The Chairperson said that Adv Breytenbach was casting aspersions on the Committee. She was suggesting that the Committee had ulterior motives, which he believed was unacceptable.

Ms Breytenbach responded that she was not suggesting it, she was stating it.

Mr Swart said that the Committee needed to bear in mind that the National Council of Provinces (NCOP) had already dealt with the issue, and they had supported the recommendations of the Minister. Secondly, the application to the court seeks no interdict against the Committee, so there was nothing preventing them from dealing with the issue. The allegations had been very serious, as had been the findings of the disciplinary hearings, which was why both the Minister and the NCOP had already reached a conclusion on this matter. The issue of an early retirement was a separate issue. He saw that Ms Gqiba had 38 years of service, which was long service, so he believed she would still have benefits. He believed in what the Chairperson had said earlier, that justice delayed was justice denied.

The Chairperson said that as there was a proposal to postpone the matter, he would open the floor for a vote.

Six Members voted in favour of postponing the matter to a later date. They wer Mr S Maila (ANC), Ms M Mothapo (ANC), Mr Mpumlwana, Ms C Pilane-Majake (ANC), Mr Skosana, Mr E Buthelezi (IFP) and Mr Mncwabe. 

The two Members who voted in favour of finalising the matter on the day were Ms Breytenbach and Mr Swart.

The Chairperson said that the matter would be postponed, and when Parliaments reconvened, the matter would be scheduled to be dealt with.

Ms Mothapo thanked the Legal Adviser for providing the legal opinion.

The Chairperson added that the Committee would further employ legal advice, as its mandate was to ensure there was justice, and where it might be unsure, the legal advisor would ensure that they were correct.

Ms Pilane-Majake raised an administrative matter, as Mr Swart had indicated that the NCOP had already concluded the matter. Administratively, she wanted to know how the Committee should deal with matters of this nature. Was the Committee not supposed to approve the matter first, and then take it to NCOP for clearance? Two houses of Parliament should not be dealing with an issue at the same time, and now it seems like there was competition.

The Chairperson said that according to the programme he had, the NCOP was supposed to be dealing with the matter on 30 November.

Mr Swart sid that he had read about it in the documents, yet he might be mistaken. If the NCOP had not dealt with the matter, then he withdrew the statement he had made. He had been under the impression that that had been the case when he briefly looked at the documents. He apologised if he had made an error.

Ms Pilane-Majake said she was satisfied now that the correction had been made by Mr Swart.

The meeting was adjourned.