Magistrate’s courts are not ‘cesspits of moral depravity’
In the Q&A with Chris Barron (Sunday Times, March 3) on the conduct of magistrates, Barron refers to the lower courts as “cesspits of moral depravity”. Our magistrate’s courts are at the forefront of people’s interaction with the law and the justice system. The issue of the conduct and the disciplining of magistrates, as well as the functions of the different role players in these processes, therefore require a closer explanation.
The courts and judicial officers are independent. Judicial officers do not report to the minister of justice & correctional services in the performance of their judicial functions. The minister, as a member of the executive arm of the state, cannot suspend or remove a magistrate on his or her own. The process of removing or holding a magistrate accountable involves several role players, such as the judicial officer who presides at the hearing, the Magistrates Commission, the minister and parliament. This is to protect the independence of the courts from real, or perceived, political interference.
To understand the bigger picture, one needs to look at our history. Under apartheid, magistrates were public servants and they were usually appointed from the ranks of the public service and not from the legal profession. Most were white men and former prosecutors from the then department of justice. Issues such as the regulation of magistrates’ conditions of service, periods of service, discipline and dismissal were governed by the laws applicable to the public service.
The Hoexter commission of inquiry recommended that magistrates be removed from the ambit of the public service and that their appointment, discipline and discharge be dealt with by advisory bodies consisting of judicial officers. This led to the enactment of the Magistrates Act in 1993. The act established the Magistrates Commission as an independent body, charged with ensuring that the appointment, transfer and discharge of magistrates takes place without favour or prejudice.
The commission plays a fundamental role in the appointment of magistrates. It is responsible for advertising vacant posts, for the shortlisting and interviewing of applicants, and then recommending the appointments to the minister. For a person to be appointed as a magistrate they have to be appropriately qualified, be regarded as “fit and proper” and be a South African citizen.
The Code of Judicial Conduct for magistrates sets a high bar. It provides that a magistrate must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office. A magistrate must at all times, also in relation to extrajudicial conduct, comply with the law of the land. When magistrates are accused of misconduct, the allegations are referred to the commission for investigation. If it is satisfied that reliable evidence exists that the allegations against the magistrate are of such a serious nature that it is inappropriate for the magistrate to perform his or her functions, the commission may advise the minister to provisionally suspend the magistrate.
Should the minister decide to suspend the magistrate pending the misconduct hearing, the minister must table a report in parliament and parliament must, as soon as reasonably possible, pass a resolution as to whether the provisional suspension is confirmed. If the commission recommends that a magistrate be removed from office, the minister must suspend that magistrate if he or she is not already suspended and must table a report in parliament. The minister has no discretion in the matter. If parliament passes a resolution that the magistrate be removed from office, the minister must remove the magistrate from office. As a member of the executive, the minister’s role is extremely limited when it comes to the suspension and removal of a magistrate — rightly so, given the independence of the judiciary.
Disciplinary steps against magistrates require procedurally and substantively fair processes, and therefore it often takes a long time to finalise and to remove a magistrate from office. These processes are sometimes further delayed by procedural challenges and delaying tactics on the part of some magistrates who want to draw out and frustrate the process. Fortunately, most unscrupulous magistrates do get removed from office, even though the process takes time.
Furthermore, court users have been found to be satisfied with the treatment they receive from magistrates in the lower courts. For example, in the “Magistrates Court User Survey Report 2023” by the University of Cape Town’s Democratic Governance and Rights Unit, some 91% of respondents agreed (and only 7% disagreed) with the statement that they were treated with respect by the magistrate, with no statistically significant differences by race, gender or income of respondent observed. This is an excellent result for the magistracy. A total of 73% agreed (14% disagreed) that magistrates understood and applied the law correctly and 69% of respondents felt their case was handled fairly.
From the point of possible corruption, 94% of respondents said they had never been asked to pay a bribe, give a gift or do a favour to get the assistance they needed from the courts. In instances where respondents did point to a bribe or gift being sought, none of the requests were from magistrates.
Yes, there are magistrates who breach the code of conduct or even the law. Some are found guilty, sometimes of very serious offences, but they are a tiny minority. I do not agree with Barron that there is a crisis in our magistrate’s courts, as the overwhelming majority of magistrates conduct themselves in a professional manner befitting of a judicial officer, both inside and outside the court.