Fit and Proper in the Courts?

At Judges Matter we often focus on the High Court, and the appointment of judges. However, for most people magistrates in Regional and District Courts are how they experience justice. Regional Courts deal with prison sentences of up to life in prison in relation to all offences except treason. A District Magistrates’ Court deals with civil matters where the value of the claim is below R200 000, while the Regional Magistrates’ Court deals with civil matters where the value of the claim is between R200 000 and R400 000. So these are courts which deal with substantial matters and this means that should things go wrong it can result in a substantial miscarriage of justice.

Consider the story of a Mr Feni, who was charged with and convicted of housebreaking with intent to steal and theft by the Magistrate for the District of Zwelitsha.  He pleaded not guilty to the charge.  The trial proceeded and he was found guilty and sentenced to two years’ imprisonment, on 6 December 2012.  The proceedings had been conducted and recorded in isiXhosa which appears to have been the mother tongue of the presiding officer and all the parties in the case. The record of the proceedings in this matter was received by the Registrar, Bhisho High Court on 24 July 2015. Over this time, Mr Feni was still in custody, and had served a two and half year sentence, which amounted to six months more than he should have spent in jail.

Why is it that his court record took two and a half years to reach the Registrar? The hitch for Mr Feni was that he had his trial run in isiXhosa. In order to appeal the court had to have the record of the trial transcribed in English, using a translator. Normally trials are run in English or Afrikaans, with a translator in the court room, translating any other language as the trial goes. The length of time it took to do this meant Mr Feni did more time than he was supposed to.  According to the judgement, the Sub-committee:  Legislation on Indigenous Language Courts is on record as having reported on 19 September 2014 as follows:

“Therefore, given the fact that a decision by any Magistrate, at his or her discretion, to conduct court proceedings in any of the nine indigenous official languages, is likely to have administrative and/or budgetary implications on the part of the Government or the Office of the Chief Justice, it is not, in my view, a salutary and desirable thing for any Magistrate to do at this stage, until such time that the issue of language policy during court proceedings in the lower courts is officially resolved and determined upon by a competent authority.” [Paragraph 22]

Judge Mbenenge of the Bhisho High Court notes that; “this is a classic case of an accused’s fundamental rights of automatic review, including the right to have proceedings reappraised by a judge speedily, having been compromised by administrative incompetency.”

In another case reported in the Herald Live former Magistrate Pumla Silinga, was found hiding with relatives in Mthatha in an attempt to avoid her criminal conviction. She went on the run in April 2016, after she was convicted of stealing R95 000 from a client’s trust account. Silinga had previously gone on the run for two years in an attempt to escape standing trial for the theft but during this time was appointed as a magistrate in Mthatha despite being suspended from the Cape Law Society’s roll of attorneys in May 2009.

What qualifications are required of magistrates? In 2010, legislators replaced the LLB requirement for regional magistrates with a general requirement that candidates be “fit and proper.” They justified the change as aligning qualifications for magistrates with qualifications for judges.  The bill was the culmination of debates over changing magistrate qualifications from specific requirements to a general appropriateness standard dating back to the 1990s, partly meant to accelerate the diversification of the magistracy.   In committee meetings, the Department of Justice and Constitutional Development (DoJCD) characterized the LLB requirement as “inconsistent with the ‘fit and proper’ requirement in the Constitution.”  Further, it described removing the LLB requirement as inconsequential since the LLB had “diminished” in status since its adoption as a requirement, citing the existence of good judges with no LLB as evidence of the degree’s misplacement as a requirement.

But given these two examples and many other stories of misconduct by magistrates in the courts of South Africa, we must question what guidelines are being put in place to ensure magistrates are ‘fit and proper’ and how should they be held accountable?