The structure of the Magistrates Commission

As an important arm of the judiciary, it is important that the magistracy be fully understood. They are central to the hiring and firing of magistrates. In this article we seek to shed some light into how the Magistrates Commission is constituted.

27 members of the Magistrates Commission

The Magistrates Commission is a statutory body established in terms of section 2 of the Magistrates Act, No. 90 of 1993 (the Act). Section 2 of the Act provides that, “there is hereby established a commission, to be known as the Magistrates Commission, with the powers and duties conferred on or assigned to the commission by or under this Act or any other law.”

Section 3 of the Act makes provision for the constitution of the Magistrates Commission and the period of office of members of the Magistrates Commission. In terms of the Act the Magistrates Commission shall constitute a total of 27 members made up as follows:

• A judge of the High Court of South Africa, as chairperson, designated by the President in consultation with the Chief Justice;
• The Minister or his or her nominee, who must be an officer of the Department of Justice;
• Two regional magistrates, one to be designated by the respective regional magistrates and the other by the President after consultation with the respective regional magistrates;
• Two magistrates with the rank of chief magistrates, one to be designated by the respective chief magistrate and the other by the President after consultation with the respective chief magistrates;
• Two magistrates who do not hold the rank of regional magistrate or chief magistrate, one to be designated by the magistrates’ profession and the other by the President after consultation with the magistrates’ profession;
• Two practising advocates designated by the Minister after consultation with the advocate’s profession;
• Two practising attorneys designated by the Minister after consultation with the attorney’s profession;
• One teacher of law designated by the Minister after consultation with the teachers of law of South African universities;
• The Head: Justice College;
• Four persons designated by the National Assembly from among its members, at least two of whom must be members of opposition parties represented in the Assembly;
• Four permanent delegates to the National Council of Provinces and their alternates designated together by the Council with a supporting vote of at least six provinces; and
• Section 3(1)(a)(xii) of the Act requires that ive fit and proper persons appointed by the President in consultation with the Cabinet, at least two of whom shall not be involved in the administration of justice or the practice of law in the ordinary course of their business.

Current members of the Commission

In terms of section 3 of the Act, the following persons are currently members of the Commission:

• Justice AP Ledwaba, who is the Deputy Judge President (DJP) of the Gauteng Division of the High Court, has been appointed as the chairperson of the commission in terms of section 3(1)(a)(i) of the Act.
• The Honourable Deputy Minister of the Department of Justice and Correctional Services John Jeffrey, who is also a member of parliament, is appointed as a member of the commission in terms of section 3(1)(a)(ii) of the Act.
• Mr MS Makamu (Regional Magistrate) and Mrs Z Mbalo (Regional Court President) are appointed as members of the commission in terms of section 3(1)(a)(iii) of the Act.
• Mr DM Thulare and Mrs YP Sidlova are both Chief Magistrates and they are appointed as members of the commission in terms of section 3(1)(a)(iv) of the Act.
• Ms G Tuck who is a Senior Magistrate and Ms LE Raborife-Nchabeleng who is a magistrate have been appointed as members of the commission in terms of section 3(1)(a)(v) of the Act.
• Advocates CI Moosa and Adv K Ramaimela have been appointed as members of the commission in terms of section 3(1)(a)(vi) of the Act.
• Ms N Jali and Ms MC Mahlatji, who are both attorneys, have been appointed as members of the commission in terms of section 3(1)(a)(vii) of the Act.
• Professor E Hurter, who is a professor in law at UNISA, has been appointed as a member of the commission in terms of section 3(1)(a)(viii) of the Act.
• Professor NS Rembe, who is a professor in law, has been appointed as a member of the commission in terms of section 3(1)(a)(ix) of the Act.
• Ms DE Dlakude, Mr QR Dyantyi, Mr W Horn and Mr GA Gardee, who are all Members of Parliament and members of the National Assembly, have been appointed as members of the commission in terms of section 3(1)(a)(x) of the Act.
• Mr YI Carrim, Mr EM Mthethwa, Mr MI Rayi and Mr WAS Aucamp, whom are all Members of Parliament and members of the National Council of Provinces, have been appointed as members of the commission in terms of section 3(1)(a)(xi) of the Act.
• Mr MN Mpya (lecturer), Dr G Moshoeu (Head of SAJEI), Ms PM Tengeni, Adv S Baloyi and Mr MM Mokoena (attorney) have been appointed as members of the commission in terms of section 3(1)(a)(xii) of the Act.

Appointment process

In terms of the Act a member of the commission shall be appointed or designated for a period not exceeding five years, and any such appointment or designation may be withdrawn by the appointing or designating authority, as the case may be, at any time after consultation with the Magistrates Commission if there are sound reasons for doing so. It is important to note that any person whose period of office as a member of the Commission has expired may be reappointed or re-designated. Further, a vacancy in the Commission shall not affect the validity of decisions of the Commission.

The Magistrates Commission has five Committees which it makes use of in fulfilling its duties. There is the Executive Committee, the Legislation Committee, the Appointment of Magistrates Committee, Grievances and Service Conditions Committee and the Ethics Committee. It is through these five committees that the Magistrates Commission operates. Whenever these committees are given tasks, they must always give a report back to the full Magistrates Commission. When interviews for prospective candidates are to take place, the Magistrates Commission will task the Appointment of Magistrates Committee to conduct the interviews and in turn the Appointment of Magistrates Committee will give a report back to the Magistrates Commission about the interview. It will then be the Magistrates Commission that will make a final decision on which candidates to recommend for appointment. The process followed by the Magistrates Commission appears to be lengthy indeed, but it seems to be effective at the same time.