Sunday Times

Magistrate’s courts are not ‘cesspits of moral depravity’

- JOHN JEFFERY ✼ Jeffrey is deputy minister of justice & constituti­onal developmen­t

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.

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