Prescription in Civil and Criminal Matters (Sexual Offences) A/B: consideration of written submissions; Provisional suspension of Magistrate Bodlani; with Deputy Minister

NCOP Security and Justice

26 August 2020
Chairperson: Ms S Shaikh (ANC, Limpopo)
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Meeting Summary

The Select Committee convened to receive briefings in a virtual meeting from the Department of Justice and Constitutional Development on the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill [B22B-2019] and from the Magistrates Commission on the Report dated 21 July 2020, on the provisional suspension from office of Ms K Bodlani, an acting Regional Magistrate at Umlazi, KwaZulu-Natal, in terms of section 13(3)(b) of the Magistrates Act.

The Department of Justice and Constitutional Development presented a summary of the written submissions received on the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill. 97 individuals had expressed support for the bill, and 37 had indicated they did not support it. Some of the reasons for not supporting the bill were that the 20 years should stand, as it was sufficient time for the victim to decide to proceed or not; there was concern at proving facts after so many years; and there were question marks around the reliability of investigations 20 years later.

The Magistrates Commission provided background into the provisional suspension of Ms Bodlani, pending an investigation into her fitness to hold office as a magistrate. It had resolved to conduct a preliminary investigation by a regional magistrate while a judicial quality assessment of her work was done by an experienced senior magistrate, as there was serious concern about the quality of her work and of the sentences handed down. The recommendation for suspension was based on the misconduct allegations only, so the Committee had to apply its mind only to the allegations of misconduct. The findings on the quality of her work would be a separate and different process.

Members asked that the Commission give the actual reason for her suspension, as they were confused -- was it for the insubordination or the irregularities in investigated cases? The report had stated that Ms Bodlani had distributed emails to her colleagues in which there were racial utterances and comments, but the report did not clearly state what they were. As this was Women’s Month, it should not be an easy thing to come to a decision of suspension -- it had to be because the Committee was satisfied with the reasons given. The Chairperson said the Committee would follow the matter, and would prepare a report for deliberation at its next meeting.

Meeting report

Briefing by Department of Justice and Constitutional Development

Ms Ina Botha, Principal State Law Advisor, Department of Justice and Constitutional Development (DoJCD), presented a summary of the written submissions received on the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill [B22B-2019].

She said 97 individuals had expressed support for the bill, and 37 had indicated they did not support it. Some of the reasons put forward for not supporting the Bill were that the 20 years’ requirement should stand, and was sufficient time for the victim to decide to proceed or not; there was concern at proving facts after so many years; and there were question marks around the reliability of investigations 20 years later.

Discussion

Mr T Dodovu (ANC, North West) said the Bill was a good intervention.      

The Chairperson said she would prepare the report for the Committee to consider and adopt at their next meeting.

Briefing by Magistrates Commission

The Chairperson said that in terms of section 13(3)(b) of the Magistrates Act, 1993, Parliament was required to pass a resolution as to whether the provisional suspension of Ms K Bodlani, acting Regional Magistrate at Umlazi, KwaZulu-Natal. If not confirmed, then the suspension lapsed.

Adv Cassim Moosa, Chairperson: Ethics Committee of the Magistrates Commission, gave some background to the provisional suspension of Ms Bodlani, pending an investigation into her fitness to hold office as a magistrate. He said that she was appointed to the Office of the Magistrate on 1 October 1996, and as Acting Magistrate since November 2013 in the sex offences court of Umlazi. The Magistrates Commission and Ethics Committee had received numerous complaints about Ms Bodlani and had resolved to conduct a preliminary investigation by a regional magistrate. A judicial quality assessment of her work had been done by an experienced senior magistrate, as there was serious concern about the quality of her work and of the sentences handed down. The investigation and quality assessment had started on 14 May 2019. The allegations of misconduct were in the tabled report. Paragraph 3.3.1 – 3.3.6 of the report contained the allegations that made her guilty of insubordination. Paragraph 3.6 indicated that she had overtly refused to comply with any order of the Acting Regional Court President, and that there was therefore prima facie evidence of misconduct.

He said the report was structured into two parts -- the investigation into the allegations of misconduct, and the judicial quality assessment of her work which had revealed serious irregularities and obvious shortcomings through the incompetent sentences handed out by her. He drew attention to paragraph 3.13, where the reviewing judges had questioned her suitability for office. The recommendation for suspension was based on the misconduct allegations only, so the Committee had to apply its mind only to the allegations of misconduct. The findings on the quality of her work would be a separate and different process.

He said Ms Bodlani had been invited to showcase why she should not be provisionally suspended, and Annexures A, B and C contained the correspondence with her. With due regard to the serious nature, the Commission had resolved that she be provisionally suspended, as the existing evidence was of such a serious nature as to make it inappropriate for her to perform the functions of a magistrate, as it tarnished the image of the judiciary and would justify her removal from office if found guilty of misconduct. This report was for the consideration of Parliament in terms of section 13(3)(b) of the Magistrates Act.

Discussion

Mr Dodovu asked that the Commission give the actual reason for her suspension, as he was confused. Was it for the insubordination, or for the irregularities in investigated cases? The report had said that Ms Bodlani had distributed emails to her colleagues in which there were racial utterances and comments, but it had not clearly state what they were. In Women’s Month, it should not be an easy thing to come to a decision of suspension – it had to be because the Committee was satisfied with the reasons given. On Adv Moosa’s comment that Ms Bodlani had been given an opportunity to respond, he asked what she had actually said in her response.

Mr S Zandamela (EFF, Mpumalanga) said he had not received all the annexures.

Mr John Jeffrey, Deputy Minister, DoJCD, said the Minister had tabled his report to Parliament, and there were three annexures -- the letter to Ms Bodlani, the letter from Ms Bodlani’s attorneys, and the response from the Commission.

The Chairperson further clarified that Mr Dodovu was looking for the allegations that were contained in emails regarding racial utterances, and the Committee did not have copies of that information.

On whether the report was on her work or misconduct, Adv Moosa said the report was about her misconduct. Paragraph 3.3.1 – 3.3.6 provided prima facie evidence that there was sufficient evidence of misconduct to allow for the provisional suspension. A case would then be made, and the allegations would be dealt with there.

On the audi alteram partem rule, he said that her responses as contained in the annexures did not contain sufficient cause for her to not be suspended, and the most appropriate decision would be a provisional suspension, pending a case investigation.

Mr Dodovu said that if all the reasons given in paragraphs 3.3.1 – 3.3.6 were lumped together, it would be insubordination, and he reiterated that arriving at a decision of suspension should not be an easy one to make.

Adv Hans Meijer from the Magistrate’s Commission said that the six charges were of misconduct, not incompetence. She had been given numerous opportunities to respond to the allegations. The Magistrates Commission was of the view that the allegations were serious and sufficient for her to be removed from office.

The Chairperson said this view appeared to be based largely on paragraph 3.6 -- on her not complying with an order or an instruction. On how many occasions had this happened?

Mr Dodovu said he wanted to see what came out of the matter at the end of the day, as it was a very interesting case. She had been appointed Acting Magistrate in 2013, and just before her promotion a letter had come and charges of misconduct laid against her, instead of her getting promotion.

Deputy Minister Jeffrey said that how the system worked had changed since then. There were two stages to a magistrate’s appointment. The position was interviewed by the Commission, who made recommendations to the Minister, who then appointed the magistrate inclusive of a probation period. He said Ms Bodlani had been appointed as a regional magistrate in 2013 with a probation period. It was not that she was not being promoted -- she had got the job and the salary.

He said it was a great pity that the quality assurance matter had not been resolved, because that was where the media coverage was and the review judgements were horrendous. The suspension was on full pay.

The issue was not for the Committee to look at and was not whether Ms Bodlani was guilty or not, but only whether it was appropriate for her to be suspended because of problems with her conduct.

Mr K Motsamai (EFF, KZN) spoke, and Mr Dodovu translated that this matter had to deal with a lot of suspicion that a person on the verge of being confirmed was facing six charges. This was very suspicious.

The Chairperson said the Committee would follow the matter, and would prepare a report for deliberation at the next Committee meeting.

Adoption of minutes

The minutes of meetings held on 29 July and 18 August 2020 were considered and adopted.

The meeting was adjourned.



 

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