Suspension of magistrates: Magistrates Commission briefing & Committee report

Meeting report

The Chairperson welcomed the Members and the Magistrates Commission.  Some Members would arrive as the meeting progressed, having been delayed by road traffic.

Briefing by Magistrates Commission

Provisional suspension: Mr D Nair

Adv. Cassim Moosa, Chairperson: Ethics Committee, Magistrates Commission, informed the Committee on the provisional suspension from office of Mr Desmond Nair, the Chief Magistrate of Pretoria, pending the outcome of an investigation into his fitness to hold office as a Magistrate, as required by section 13(3)(b) of the Magistrates Act. Mr Nair was the Chief Magistrate, Judicial Head of Office, Pretoria, and the Head of the Gauteng B Cluster. He was appointed to the lower court bench on 1 April 1996. He was then appointed a Senior Magistrate on 1 December 1999 and a Chief Magistrate, heading the Gauteng Cluster at Pretoria on 14 November 2006.

The misconduct charges preferred against Mr Nair related to allegations that during 2016, he asked for, accepted or received a special financial benefit from BOSASA, to the approximate value of R200 000. The security system installed at his private residence had been upgraded, and this may unduly influence him in the execution of his official duties or create the impression that this was the case. This could also be reasonably perceived as being intended to influence him in the performance of his judicial duties, or to serve as a reward for performing with misconduct.

Having considered Mr Nair's representations, as compared to the seriousness of the allegations against him, and in the interest of the image of the judiciary, the Commission's Executive Committee (Exco) had resolved to recommend that Mr Nair be provisionally suspended from office at its meeting held on 12 December 2019. The Commission was of the view that the allegations against Mr Nair were of such a serious nature as to make it inappropriate for him to perform the functions of a Magistrate while the allegations were being investigated.

The Minister had been advised by the Commission to provisionally suspend the Magistrate. Parliament must, as soon as reasonably possible, pass a resolution as to whether or not the provisional suspension should be confirmed, in terms of section 13(3)(c). If Parliament passes a resolution that the provisional suspension is not confirmed, the suspension lapses in terms of section 13(3)(d).

Suspension: Ms I Meyburgh

The second case was that of Ms I Meyburgh, a 56-year-old aspirant Magistrate appointed by the Minister, with effect from 1 November 2015.

Adv Moosa said that Mr E Mashile, Ms Meyburgh's former Judicial Head of Office and Head of the Cluster, in a letter dated 13 October 2017, had advised the Magistrates Commission that Ms Meyburgh had reported sick only a month after her appointment to the bench. She had been absent from office from 9 December 2015 until 31 May 2016. She returned to office on 1 June 2016 but reported sick again as from 19 August 2016. Except for a few days in September 2016 and the month of December 2016, she was absent from office for the remainder of 2016.

She resumed work on 1 January 2017, but was again booked off sick from 12 January 2017 until 1 September 2017. She reported for duty on 4 September 2017, but managed to remain in office only until 18 September 2017, when after she was off sick again. Mr Mashile had requested the Commission to extend her probation period until the end of 2017.

Ms Meyburgh's continuous interruption of her work schedule made it very difficult, if not impossible, for Mr Mashile to plan the court rolls and other work upfront to ensure that service delivery and the smooth running of the courts were not compromised. It also made it difficult for Ms Meyburgh's performance on the bench to be properly evaluated for purposes of a possible permanent appointment, as she was not in a position to produce any work upon which her fitness or to hold office could be assessed. To date she not returned to office, and had not completed the required probationary period for aspirant magistrates.

On 18 May 2018, the ethics committee had considered the documentation presented to it regarding the continued ill-health of Ms Meyburgh, and ordered that an investigation be held into her fitness to hold office, in terms of regulation 29(1) of the Regulations. In a letter dated 23 May 2018, she was duly informed of the investigation and was, in terms of regulation 29(3), requested to submit a medical report from a medical practitioner of her choice to the Commission.

It was clear from Ms Meyburgh's subsequent responses that she did not comment on the Commission's opinion that she was not fit to hold office any longer, and that a recommendation to suspend her from office would therefore be justified. Apart from admitting that she was still receiving her salary and additional benefits, she did not justify why the Commission should not determine to withhold her remuneration.

The Department's Regional Office reported that due to her continuous absence from office, she had received a total overpayment of R449 736.20. This was now being recovered from her salary in instalments of R10 000 per month. She had completed her leave forms only on 9 July 2019, and had submitted medical certificates for processing.

She had since been suspended from office by the Minister. Parliament must then pass a resolution, as soon as reasonably possible, recommending whether or not she should be reinstated.

Discussion

Mr E Mthethwa (ANC, KwaZulu-Natal) asked why it was only the Ethics Committee of the Magistrates Commission that was present to report to Parliament, while there were other sub-committees within the Commission that had critical mandates. The Select Committee should be receiving the reports of all these committees, unless the Magistrates Act stipulated otherwise. Why was the Commission’s Exco not present to report on broader issues within the structure? Why was the Judge, who was the chairperson of the Commission, not required to report to Parliament?

The Chairperson explained to Mr Mthethwa that section 13(3) of the Act stipulated that misconduct matters had to be reported to Parliament only by the ethics committee. Adv Moosa could clarify who the Commission accounted to on a broader scale.

Mr A Gxoyiya (ANC, Northern Cape) asked if Ms Meyburgh’s suspension from office had been confirmed. Public servants were employed in terms of the Public Service Act, which stipulated that in the case of absence for over 30 days without medical proof, it would be a considered a deemed dismissal. If the absence was beyond 90 days, the employer had the responsibility to take the employee to a doctor to verify the validity of the medical grounds presented, and to determine the employee’s fitness to perform his/her work duties. If employees were found to be unfit, they would be medically boarded. He was shocked that Ms Meyburgh had been placed on probation for almost three years. How did this happen? What legislation governed the employment of magistrates?

Mr S Mfayela (IFP, North West) asked for the timeframe of the investigation into Mr Nair’s fitness to hold office. It would be costly to the public purse to prolong these investigations.

Responses

Adv Moosa explained why only the ethics committee delegation, and not the Commission’s Exco and chairperson, were present at the meeting. He said that in all his years of service with the Commission, it had never been the practice to have all the sub-committees and the Commission Exco present to report on misconduct matters. The leadership structure of the Commission, which had been well-entrenched for several years, had an Exco which comprised of the chairpersons of the various sub-committees. Misconduct matters fell directly within the purview of the ethics committee, and it was therefore incumbent upon the present delegation to report on these matters before the Select Committee. He and Adv Johannes Meijer (MC Member) had been specifically chosen due to their knowledge and insight into details of the misconduct matters.

These meetings used to be attended solely by Adv Meijer to present the reports on behalf of the Commission. A resolution was then passed by the Commission that Adv Meijer be accompanied by the chairperson of the ethics committee to brief Parliament on the misconduct matters. This was a well-established practice.

Adv Moosa explained that the wording of section 13(4)(a) of the Magistrates Act, as amended, was misleading, and this created confusion. The Act stipulated that that there were three grounds upon which the Commission could recommend the removal of a Magistrate from office -- misconduct, continued ill-health, and incapacity to carry out the required duties. Ms Meyburgh had both continued ill-health and incapacity to carry out her duties. On this basis, the Commission recommended the removal to the Minister and the Magistrate was suspended, pending the investigation that would determine whether she should be permanently removed from office.

Section 13(4)(b) orders the Minister to then table a report to Parliament within 14 days of the suspension, and he had done this on 26 November 2019. The matter was now before Parliament in terms of section 13(4)(c). The Act instructed Parliament, as soon as reasonably possible, to pass a resolution on whether to permanently remove or restore the Magistrate from office. The ethics committee was present, on behalf of the Commission, to ask the Select Committee to support the permanent removal of Ms Meyburgh, in terms of section 13(4)(d).

He indicated that the preliminary investigation report had been completed. The Commission would now conduct a misconduct inquiry, and hoped to finalise it promptly.

Adv Meijer reported that Ms Meyburgh was still on probation. The procedure was that appointed Magistrates would enter into a contract, based on the recommendation made by the Commission to the Minister, and had to comply with all the processes until they were deemed to fit to preside over and assess the matters presented to them in the Magistrates Court. This could not be done with Ms Meyburgh, since she had been absent from office. Her probation period had been extended, but on the basis of the contract, the Commission had obtained a legal opinion to recommend to the Minister that she should not be appointed permanently into office. The recommendation had added that the Commission should rather undertake a disciplinary inquiry or a capacity evaluation for her.

The Public Service Act was not applicable to Magistrates, because they were public office bearers and not employees – they were subject to the Magistrates Act. If a Magistrate was absent from duty for longer than 30 days, they would be deemed to have absconded. A Magistrate’s debt to the state, in itself, was not deemed as guilt for misconduct. This clause had been found to be unconstitutional in the Van Rooyen matter, back in 2001, and had subsequently been amended. If a Magistrate absconded, their removal from office would be recommended by the Commission to the Minister.

Follow-up comments

Mr G Michalakis (DA, Free State) proposed that the Committee owed gratitude to the delegation of the Commission for the consistently professional manner in which it came to present misconduct matters to Parliament. In all his years of service in Parliament, this was one entity that always produced impeccable reports and delivered its presentations with the warranted detail and clarity.

Mr Michalakis moved for the adoption of both reports, as presented to the Committee.

Mr Mthethwa explained that his comments were not aimed at attacking the ethics committee. The report received from the Commission was much skewed. On the previous Tuesday, the Committee had had to approve the budget for the Commission, but there had been no indication of the state of the entity. It evidently needed a lot of restructuring. There were judges who had backlogs of as many as 20 cases, and there were people who ended up incarcerated for up to five years without trial. The Department of Justice was spending a lot of money on the court cases because of these magistrates. The Committee should request Exco reports from Commission, which would encompass the status updates of all the sub-committees functioning under the Commission.

The Chairperson recognised Mr Mthethwa’s points, but said he was raising broader governance issues that could be discussed at a different meeting.

Mr Gxoyiya proposed that the matter being raised by Mr Mthethwa was a matter that the Committee should discuss on its own, as part of its programme. It could then resolve on summoning relevant bodies to which it could communicate these concerns. The reports that were received from the Commission were usually not requested, but would be received when the entity was seeking Parliament’s approval on how to proceed.

He supported Mr Michalakis’ motion to adopt the reports, stating that the facts that had been presented by the Commission compelled the Committee to support the recommendations being made by the entity to the Minister. The ongoing investigation in the Mr Nair case should be fast-tracked in order for him to also know his future.

The Committee agreed to recommend the provisional suspension of Mr Nair, and that Ms Meyburgh should not be reinstated back into office.

The Chairperson thanked the Members and the Magistrates Commission for attending the meeting.

The meeting was adjourned.