Magistrates Matter: Turning the light to shine on the magistracy
The judicial system in South Africa comprises of the following courts of law: the Constitutional Court; the Supreme Court of Appeal; the High Courts, the Magistrates’ Courts; and any other court established by legislation (such as the Labour Court). In her thesis on the transformation of the South African magistracy published in 2007, Vanja Karth observed that “whilst a substantial body of literature exists on the judiciary and the higher courts, almost no attention has been paid to the magistracy.” Her observation still rings true today. More often than not, when people talk of the judiciary in South Africa, they refer to judges and seldom do they perceive magistrates as part of the judiciary. Yet, legally speaking magistrates are judicial officers who perform judicial functions, including hearing cases and delivering judgments in both civil and criminal matters. For instance, in terms of section 89 of the Magistrates’ Court Act, the district magistrate’s court has jurisdiction over all offences, except treason, murder and rape while the regional magistrate court has jurisdiction over all offenses except treason.
With such a wide jurisdiction, magistrates are a very important structure of the judicial system and are at the forefront of the South African justice delivery system, as they are usually the first port of call for people who come into contact with the criminal justice system or who intend to conduct civil suits. Without necessarily removing the focus on judges, the Judges Matter campaign will now also be promoting public engagement on issues which relate to the magistracy. To kickstart this engagement, we begin by unpacking the basics regarding the governance structure of the magistracy, how magistrates are appointed, how their security of tenure is regulated, and how they are held accountable for misconduct.
Magistrates are primarily regulated by the Magistrates Act of 1993 and the Magistrates’ Court Act of 1944. The magistrates court exists at two levels namely the district magistrate court, which is headed by the Chief Magistrate and the Regional Magistrate Court, which is headed by the Regional Court President. In 2018 the Office of the Chief Justice reported that the total number of magistrates stands at 2 036. There is a Magistrates Commission, whose objectives include promoting professional development and independence of the magistracy, conducting investigations and making recommendations to the Minister on the appointment, suspension and removal of magistrates. The Magistrates Commission is established in terms of the Magistrates Act of 1993. This Commission is appointed by the President of the Republic and it comprises of a High Court Judge (who acts as the chair), an officer of the Department of Justice, two Regional Court Presidents, two Chief Magistrates, one magistrate, an advocate, an attorney and a law academic.
Any citizen or permanent resident of South Africa who is appropriately qualified, who is fit and proper qualifies for appointment as a magistrate. In this sense, “appropriately qualified” means a person who has legal training and experience of practising law. In terms of section 10 of the Magistrates Act, Magistrates are appointed by the Minister, after consultation with the Magistrates Commission. In practice, the Magistrates Commission causes the Department of Justice to advertise the available vacancies. Thereafter the Commission conducts interviews and recommends candidates for appointment by the Minister. Arguably, the interviews are supposed to be open to members of the media and the public. The Minister is not obliged to appoint the persons recommended by the Magistrates Commission.
There are mechanisms in the Magistrates Act to safeguard security of tenure for Magistrates. According to section 13 (3) of the Act and as was underscored by the Constitutional Court in S v Van Rooyen, a magistrate can be removed from office prior to his or her retirement age only for reasons of misconduct, continuous ill health or incapacity. In practice, allegations of misconduct, continuous ill health and incapacity must be reported to the Magistrates Commission who in turn will conduct investigations as well as a hearing. Where the Commission finds the magistrate guilty of the allegations, it may make recommendations for the Minister to remove the magistrate. The Minister may however decide to impose another appropriate remedy, which may not necessarily be to remove the magistrate from office. The Minister is required to account to Parliament by tabling a report to Parliament if any decision has been made to suspend or remove a magistrate. This report must be tabled by the Minister within 14 days after the suspension or removal of the magistrate, if Parliament is in session. If Parliament is not in session, the report must be tabled within 14 days after the commencement of Parliament’s next session.
In the words of former Chief Justice of South Africa Ismail Mohamed, “it is in the Magistrates’ Courts that justice is tested in its most crucial, most pervasive, most voluminous, most pressurized, and logistically most demanding dimensions – in literally thousands of cases every day…the continuous struggle for the legitimacy and the efficacy of the instruments of justice is substantially lost or won in the Magistrates Courts”. It is therefore important that citizens engage with the issues relating to the magistracy in order to promote the independence, accountability and the efficiency of this critical structure of the judicial system.