Magistrates Commission criteria

Questions asked by the Magistrates Commission during the interviews and the criteria applied

Filling the vacancies – October 2019 interviews

It is undisputed that there exists a huge number of vacant positions within the Magistracy. There are currently 26 vacant positions of regional court magistrates. The vacant positions vary between Soweto, Brits, Tlhabane, Moretele, Rustenburg, Bloemhof, Taung, Kimberly, Thohoyandou, Mhala, eMkhondo, Worcester, Oudtshoorn, Port Elizabeth, Mdantsane, Mthatha, Bloemfontein, Heilbron, Kroonstad, Durban, Verulam, Port Shepstone, Pietermaritzburg, uMzimkhulu and Vryheid Magistrates Courts. Seeking to fill the vacant positions of regional court magistrates the Appointments Committee of the Magistrates Commission interviewed 88 candidates between 28 October and 4 November 2019.

The interview process

The Appointments Committee of the Magistrates Commission must be commended for displaying so much consistency during the interview proceedings. Consistency was displayed, inter alia, in terms of the questions posed to the candidates and the amount of time the interview of each candidate lasted. It is rare to find such consistency in proceedings such as this one. Be that as it may, the same cannot be said in respect of the answers provided by the candidates to the questions posed by the Appointments Committee of the Magistrates Commission.

Questions posed

The questions posed to the candidates ought to be general knowledge questions to any individual operating within the legal field, especially magistrates. However, this proved not to be the case. Each interview of the candidates commenced with an introduction of all those present. The chairperson of the Appointments Committee then followed up with integrity questions posed to the candidate. The integrity questions require “yes” or “no” answers and if the answer is “yes” then an explanation. The integrity questions are, inter alia, as follows:

• Have you ever appeared in court on a criminal charge?
• Are there any civil judgments or civil suits against you?
• Have you ever faced a disciplinary inquiry?
• Are you faced with any financial circumstances that would be detrimental to the office of the magistracy?

Thereafter the criteria of acting arise as the chairperson of the Appointments Committee determines whether the candidate has ever acted in the position for which they have been shortlisted. If so, various follow up questions relating to the acting stints are posed to the candidate to determine the experience acquired and conduct of the candidate during the acting stint.  The regional court president is then subsequently allowed 20 minutes, if it is one regional court president, or 10 minutes each, if it is two regional court presidents, to pose questions to the candidate. The questions posed by the regional court president to the candidate relate to both civil law and criminal law. These are not complicated questions at all, and they were as follows:

• In a sexual offence where the victim is a minor child, what ancillary orders are to be handed down with the judgment?
• In a murder case where two assessors were appointed, and one assessor passes away, how should a magistrate deal with such a situation?
• Where there is a child witness, how is a competency test to be conducted?
• In a sexual offence where the victim is a minor child, how is an intermediary appointed?
• Where an offender is convicted on a sexual offence and imprisonment is imposed, what must the victim or victim’s family members who are present in court be informed of?
• In a rape scenario where X holds the victim’s hands, Y holds the victims’ feet and Z rapes the victim, what sentences, if any, would be imposed on X and Y?
• How is a customary marriage dissolved?
• Where parties in a divorce involving children, enter into a settlement agreement without a report from the family advocate, would you grant a decree of divorce?

Disappointing answers

Some of the answers received from the candidates were quite shocking to say the least, especially regarding sexual offences-related cases. In recent months there has been much controversy regarding gender-based violence and femicide, especially after the Uyinene Mrwetyana case. Uyinene Mrwetyana was a 19 year-old University of Cape Town student, who was abducted, raped and slain in August 2019.  Mrwetyana’s death has come to symbolise the plight of the country’s many woman and children against gender-based violence and femicide. Given such recent events regarding gender-based violence and femicide one would expect that the people sitting on the bench and administering justice would know the law and be able to apply it accordingly.

However, this proved not to be the case. During the interviews, it became apparent that some candidates, who are already magistrates, did not know what the minimum sentence in rape cases is, in general, and in rape cases involving children, in particular. The candidates did not know what circumstances cannot be considered substantial and compelling circumstances in order to deviate from minimum sentences in rape cases. Some of the candidates also did not know what rights are to be explained to the victim of rape after the sentencing of the offender.

We can only wonder whether the lack of knowledge displayed by some of the candidates during the interview proceedings was only the tip of the iceberg.