Magistrates: drunks, thieves and killers

Four have been kicked out this year alone as the credibility of the courts suffers

MAGISTRATES around the country are under fire for breaking — rather than applying — the law.

The Sunday Times has come across shocking cases of magistrates being investigated, suspended and. in some instances, removed from office for sexual harassment, drunken driving, assault, gambling, fraud, theft and even murder.

The seriousness of some of the cases has raised doubts about the magistrates’ ability to mete out justice and has a broader impact on the credibility of the courts.

Statistics provided by the Magistrates’ Commission this week reveal that 258 complaints were made against magistrates last year, whereas 222 complaints have been received in 2013 so far. These have resulted in 28 formal investigations.

Four magistrates have been removed from office this year and one has been suspended. One magistrate was suspended last year.

An investigation by the Sunday Times has also revealed that several magistrates have been accused, and in some cases found guilty, of serious misconduct.

They include Collen Dumani from Graaff-Reinet, who was removed from office this year. He was found guilty in 2010 of, among other things, “sticking his hand between the breasts of the clerk of court”, stroking the cheek of an administrative clerk, and tickling the back of a cleaner’s neck. Other cases include:

Queenstown magistrate Irvan Masimini, who was convicted of assault with intent to do grievous bodily harm after he pulled a woman’s hair and cut her chin when he hit her with a glass tumbler at a tavern. He had previously been found guilty of using “foul” language in court and was later removed from office;

The judicial head in Lichtenburg, Itumeleng Morake, who threatened a businessman “with deportation back to Bangladesh” if he did not sign an agreement in a matter before him.

This magistrate was also accused of stealing two sums of R5 000 and R500 handed in to the court by members of the public.

In another case, Morake was accused of taking R1 173 from a woman to settle electricity arrears owed to the municipality. He allegedly threatened to lock her up in jail if she did not comply with his instructions to pay the money to him. He has denied the allegations and his case is pending;

Umlazi magistrate Michael Masinga, who was convicted of attempted murder after he assaulted his wife with an axe. His matter before the commission is pending;

Cape Town magistrate Mendile Tyulu, who was removed from office for sexually harassing an accused who appeared before him;

A Scottburgh magistrate who was suspended for striking her own traffic offence matter off the court roll. Her suspension was later lifted;

A Pretoria magistrate who was convicted of stealing containers from a pharmaceutical laboratory, although this was later overturned. He also used a work computer to send “explicit pornographic mate- rial” during office hours. His suspension was later lifted; and

Kempton Park chief magistrate Judith van Schalkwyk, who has been accused of gambling during office hours and instructing another magistrate to “do her hair” during work hours and at home.

The Magistrates’ Act stipulates that the minister of justice, after consulting the commission, must appoint candidates who are “fit and proper”.

The Justice Department lists among the criteria for selecting magistrates “integrity” and “work ethic”.

Some magistrates who are the subjects of investigations into questionable behaviour are suspended — with or without pay — but others continue to sit in court.

Reports to parliament reveal numerous delays in finalising investigations against magistrates. Some receive a pay cheque after being convicted of such crimes as murder, fraud and theft.

In 2011, parliament’s justice portfolio committee complained of delays in the case of Mxolisi Matereke, a magistrate convicted of murder and assault. It took the commission more than three years after his first court appearance to charge him with misconduct.

“The committee finds it completely unacceptable that there was this inordinate delay and urges the commission to finalise its proceedings and, if possible, to consider [his] immediate removal from office, particularly given that he is currently in prison having been inter alia found guilty of murder,” the committee said.

Misbehaving magistrates can have a negative impact on the justice system, as in the case of a Free State magistrate who was charged with 10 counts of misconduct, including driving under the influence.

A psychologist reported to the commission that he had suffered “brain atrophy” as a result of alcohol abuse, which brought on “inconsequent behaviour”, inconsistent judgments and “a lack of insight”, which affected his work. He was later removed from office and has since died.

In other instances, cases have had to be reviewed and, in at least one instance, the minister of justice was sued for damages because of a magistrate’s conduct.

Justice Department spokesman Mthunzi Mhaga said of the delays in finalising complaints against magistrates: “Each misconduct complaint is investigated on its own unique set of facts. The complexity . . . and the availability of evidential material will have an impact.”

He said many complaints stemmed from unhappiness with a judgment or sentence.