The disciplinary process of Magistrates for misconduct, including Sexual Harassment
The Magistrates Court is the first port of call for most citizens who encounter the justice system. It is for this reason that the security of tenure of magistrates must be safeguarded, and magistrates must be held accountable for all conduct. The most prominent mechanism in place to hold magistrates accountable for their conduct is the disciplinary process undertaken and which is provided for in the Magistrates Act, 90 of 1993 (“the Magistrates Act”).
Understanding how well the disciplinary mechanisms for magistrates works is important. This is especially so given the poor perception of the magistracy in the public’s eye. The Afrobarometer survey in 2019 indicates that 32% of citizens say that most or all magistrates and judges are corrupt, while a further 47% of South Africans say that some magistrates and judges are corrupt. Moreover, 47% of citizens surveyed have no or little trust in magistrates.
The Code of Judicial Conduct for Magistrates
The conduct of magistrates is governed by the Code of Judicial Conduct for Magistrates (“the Code”). The Code applies to all magistrates and in terms of the Code magistrates must adhere to judicial independence, must act honourably, must ensure equality in the discharge of their duties, must ensure transparency and must act with diligence and restraint. In addition to these attributes, magistrates must not receive income or compensation that is not compatible with judicial office.
The internal complaint(s) procedure against magistrates
Should a magistrate fail to adhere to the provisions of the Code, such misconduct must be reported to the judicial head of the court wherein the magistrate concerned presides. The complaint must be in the form of a written declaration under oath or sworn affirmation and it must provide specific details about the nature of the complaint and any other information that may be deemed relevant. Should the complainant not be satisfied with the way the complaint is dealt with by the judicial head of the concerned court, the complainant may lodge a formal complaint with the Magistrate’s Commission (“the Commission), through the secretary of the Commission.
The magistrate’s commission’s disciplinary procedure against magistrates
There are two stages to the complaint’s procedure undertaken by the Commission. First there is an internal investigation conducted by the Commission. Second, there is a parliamentary procedure undertaken by the Commission with parliament.
Within the Commission, the complaint is dealt with by the commissions’ Ethics Committee, which is comprised of ten commissioners including its chairperson. The Ethics Committee appoints an investigating officer to investigate the allegations made by the complainant and determines whether there is any merit to such allegations – this is the preliminary investigation. The investigating officer investigates the complaints and prepares a report, which recommends whether the magistrate complained of should be charged and what those charges should be.
The report is tabled before the Ethics Committee for consideration. The Ethics Committee considers the report of the investigating officer and decides whether the complaint warrants a suspension of the magistrate complained of, pending the disciplinary process. The Ethics Committee must provide the magistrate concerned with an opportunity to be heard regarding the desirability of the suspension. The Ethics Committee may only make a recommendation for the suspension of the magistrate concerned if it is satisfied that reliable evidence exists indicating that the complaint against the magistrate concerned is of a serious nature and that it would be inappropriate for the magistrate to discharge his duties while the disciplinary process is pending. The ethics committee thereafter tables the report and its decision to the full Commission, which comprises of 30 commissioners. Should it be determined by the full Commission that the complaint warrants a provisional suspension of the magistrate complained of the Commission will make the recommendation for provisional suspension to the minister in the Department of Justice and Constitutional Development. The minister of justice will provisionally suspend the magistrate complained of on the advice of the Commission.
The parliamentary process of the disciplinary procedure against magistrates
It is after the minister of justice has provisionally suspended the magistrate concerned that the second stage of the disciplinary process is undertaken. The minister of justice must within seven days of the suspension table the report in which the provisional suspension and reasons therefore are made known, before parliament. If parliament is not in session at this point in time, then the report must be tabled before parliament within seven days after the next session of parliament ensues. Parliament must as soon as possible pass a resolution as to whether the provisional suspension of the magistrate is confirmed. This parliamentary process also becomes complex as it is also a two-staged process. The minister of justice and the Ethics Committee must appear before the portfolio committee on justice and correctional service to table the report. The portfolio committee on justice and correctional services will exercise its discretion and decide whether it supports the report making provision for provisional suspension of the magistrate concerned. The portfolio committee of justice and correctional services will thereafter table the report before the national council of provinces for confirmation. The parliamentary process is prolonged by the various stages that must be followed.
The investigation of a magistrate after suspension
After the suspension of a magistrate has been confirmed by parliament, the disciplinary process must be continued by the Commission. The provisional suspension of a magistrate lapses after 60 (sixty) days from the date of suspension of the magistrate concerned unless the commission commenced with the disciplinary inquiry of the magistrate within the period of 60 days. The Commission commences the disciplinary inquiry against a magistrate by issuing and serving a written notice of the charges concerned to the magistrate. The notice of the charges must call upon the magistrate concerned to deliver a written admission of denial of the charges and the basis therefore. Should the magistrate concerned deny the charges or fail to comply with the direction in the notice, the commission will have to either continue with the investigation and/or convene the disciplinary inquiry of the magistrate. In convening the disciplinary inquiry, the Commission appoints a magistrate or person to preside at the investigation, and a magistrate or person to lead evidence.
During the disciplinary inquiry / investigation, the audi alterum partem principle applies and the magistrate concerned has the right to be represented. At the conclusion of the disciplinary inquiry / investigation the presiding officer must notify the commission and the magistrate charged of his or her findings after having considered the evidence led during the disciplinary inquiry / investigation. The presiding officer must also supply a copy of the minutes of the disciplinary inquiry / investigation to the commission.
Removal from office or reinstatement to office
The presiding officer can either recommend to the Commission that the magistrate be found guilty or not guilty. If the presiding officer recommends that the magistrate be found guilty or if the magistrate concerned pleaded guilty, the presiding officer and the magistrate concerned shall furnish any aggravating or mitigating factors, as the case may be. The Commission may request additional information from the presiding officer and/or from the magistrate concerned, should this become necessary. The Commission will thereafter make a recommendation to the minister and submit all relevant documents made use of during the disciplinary inquiry / investigation to the minister of justice. The same parliamentary process outlined above must, once again, be followed by the minister of justice.
This complaint mechanism in the lower courts is applicable in all complaints, even sexual harassment complaints. However, considering the sensitive nature of sexual harassment, this complaint mechanism is not effective as it takes years on end to bring a complaint to conclusion. This has the potential of secondary victimisation.
