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Fit and Proper in the Courts?

Fit and Proper in the Courts?

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?

 

Comments (4)

  1. Avatar
    Thembile Dingiswayo
    Sep 1, 2016

    Magistrates should be subjected to the same laws that every citizen of this country are expected to obey. South Africa is a country with multi-cultural diversity and there can never be a single moral code which can be used as a yardstick to measure “fit and proper”ness of magistrates except the broad-based value system based on humaneness of behavioural conduct and humanity at large. A code of conduct based on christianity may well be offensive to Hindu or African customary moral beliefs.Bias, prejudice and ill-informed assumptions will be circumvented by a clear and unambiguous code of conduct informed by principles of equity, fairness and justice set by consensus. There must be a strategy put in place to deal with the issue of diversity and multi-culturalism to mitigate against the possibility of error as those who scrutinise the behaviour of magistrates are humans prone to human error.

    I am passionate about this topic because I am a former magistrate who was subjected to harassment at workplace. Evidence against a magistrate must be based on statement under oath and due process as laid out by the Magistrate Commission be followed to deal with a complaint against a magistrate simply because a magistrate is a human being whose basic rights are guaranteed by the Constitution. In my case apparently my personal mobile number was leaked to the convicts in prison. A group of people that I committed to prison then started stalking me and harassing me.I laid charges at the local police station.A police officer and a prosecutor duly compiled an application for purposes of section 205 of the Criminal Procedure Act.For considerations of fairness, I requested them to approach my immediate senior magistrate to authorise the 205 subpoena. My immediate senior refused to sign the warrant.Then the whole investigation was bungled by my superior. Then the stalking stepped up to the another level.

    A letter from an anonymous person found its way to the Ethics Committee of the Magistrates Commission. The Ethics Committee then based on this flyer or document then resolved to start misconduct proceedings against me.The information at the disposal of the Ethics Committee was not a sworn affidavit, it was not signed by any human being and the information contained therein was not scandalous and did not disclose any moral impropriety attributed to me. But still an investigator was sent to my office to look for the anonymous person who wrote the letter.It must remembered that I was a Head of Office of a remote one-man station in the Northwest. The investigator then disclosed the contents of the anonymous letter to all the clerks, interpreters, prosecutors ando all police officials in my district. The investigator obtained statements from all these people and went to the community and obtained random statements from ordinary members of the community where I was working.Not even one of all these people attested to the contents of the letter from anonymous.
    But the whole exercise led to my character and image sullied and tainted. It was a concerted effort to bring the judiciary into disrepute. I became angry and then resigned on the spur of the moment to save the local judiciary from disgrace. I felt that the Magistrate Commission piggybacked on the blackmail, smear-campaign, harassment and stalking by the faceless unknown people who wrote that anonymous letter.I felt victimised and I was diagnosed with depression. I then later wrote a notice to the judicial Cluster Head of my province in which I was retracting, withdrawing and rescinding my resignation.
    I was informed that the clusterhead declared that she wanted to fire me because I “know too much”.The cluster head never responded and never reacted to my cancellation of resignation. She instead fast-tracked the stopping of my salary by the Department of Justice.
    I then went to the Magistrate Commission and I spoke personally with the Secretary of the Magistrate Commission and exchanged correspondence with hime. He promised to attend to the matter but until today there is no feedback from him.
    The one fact that trouble my soul is that one of the individuals that I convicted and sentenced is a brother-in-law of the Judicial Head of my province and no reason can be found to justify the procedural unfairness, I justice and malice with which I was treated except that it is a personal vendetta against me.
    The magisterial district in which I presided is a parental home of the Chief Justice and his mother is residing there.The mother-in-law of the cluster head resides there.The wife of the liberation stalwart Moses Koran reside there.There was no room for me to commit judicial professional foul. During my tenure as a magistrate there “JUSTICE PREVAILED”.
    Now I am unemployed and am without any source of income.
    Is it justice that was served. Is it constitutional to render the lives of the majority of our citizens to people who treat fellow colleagues in a shabby manner like mine. Even the dumbest criminal must be convicted and committed by virtue of information or statements under oath. I have both the Buiris degree and the LLB degree, if I was treated in this grossly errornous and unjust fashion, what about the lay persons who appear before the magistracy
    PS. Please refer to my comments on the Judges Matter post on “what must be done to discipline judges”The procedure as layed down by your response to my comment was not followed in my case.

  2. Avatar
    John
    Sep 7, 2016

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  3. Avatar
    Steve
    Jan 18, 2017

    It is disappointing to read the story of Thembile above. The source of my disappointment is that the topic is about the requirement of “fit and proper” to be appointed as a magistrate.From his account of what happened to him it is debatable whether he understand the concept properly. i am saying that because ‘fit and proper’ is very wide and includes, but not limited to, emotional maturity,making rational decisions,being analytical about issues confronting one,and most importantly having the ability and capacity to make reasoned judgements on issues.i.e being able to apply the law to the facts meticulously.

    Though sympathetic to what happened to him, I also feel he let it onto himself. Firstly, he should have known what the law say about resignation and retraction thereof. He should not have been emotional but confront what was facing him head on. Is it the question of ‘the guilty are afraid’?

    Secondly,he should have known how to allow due process to take place. South Africa is a constitutional state and courts are there to give effect to the Constitution and its values. It does not matter how many rules and procedures are put in place as long as we do not use them, they become ineffective and defeat the purpose.

    Thirdly,his call for a statement under oath, as a precursor to any investigation by the Magistrate Commission or any investigation against any office bearers smacks of the disregard of the Protected disclosure Act at best. It also put a stringent requirement on reporting of misconduct and crime in general in the country. What is crucial is whether the investigations are done properly within the prescripts of the Constitution and the law.

    In conclusion i align myself with the removal of the LLB requirement as thee main requirement used to determine ‘fit and proper’ person. i have come across a number of magistrates who, one wondered whether despite their qualifications are really ‘fit and proper’to hold their positions.To them being magistrate means they are the law and ‘law unto themselves.’ The two cases discussed and what happened to Thembile are a true reflection of the problems about ‘one size fit all approach’.

  4. Avatar
    Ndhuma
    May 25, 2017

    I just wanted to say I follow your page and find it to be very informative for me as a student of law. Keep up the good work. I aspire to be a Judge one day and your articles continues to simplify the work of a Judge.

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