Magistrates use ‘every trick in the book’ to delay disciplinary hearings, parliament hears

Magistrates facing disciplinary hearings – including one who is accused of rape and another of sexual harassment – are using “every trick in the book” to delay disciplinary proceedings against them, the Magistrate’s Commission told the portfolio committee on justice and correctional services on Wednesday.

The commission’s ethics committee chairperson, advocate Cassim Moosa, and the commission’s Hans Meijer told MPs about four cases with which they were dealing.

The committee heard that, in each case, the magistrates used tactics, including applications to the high court, firing legal counsel or asking for postponements in disciplinary hearings, to delay proceedings.

The oldest case dates back to 2013.

Eric Nzimande

One of the cases the commission is dealing with is that of Eric Nzimande, the regional court president of KwaZulu-Natal.

There are 50 counts of misconduct against him. Most of these involve allegations that he received payments from attorneys he appointed as acting regional magistrates in his jurisdiction between 2012 and 2016.

He also allegedly sexually harassed a female acting regional magistrate between 2012 and 2015. It is alleged that he made sexual advances at the magistrate, called her into his office and asked her to sit on his lap.

He also allegedly indicated to her that she was indebted to him for her job and attempted to coerce her into having a sexual relationship with him, discussing his sexual exploits with her and sending her a picture of his genitalia.

Nzimande was suspended in October 2018. He pleaded not guilty.

The commission appointed three regional magistrates to preside over his misconduct hearing and the National Prosecuting Authority (NPA) will lead evidence at the hearing.

Meijer said they also expected action to be taken against lawyers involved in the issue of payments for jobs.

Moosa said the Nzimande investigation has been extremely difficult.

“People are afraid of being intimidated,” he said.

While he is suspended, Nzimande is receiving his salary.

Mziwonke Hinxa

The commission is also dealing with the case of Bloemfontein chief magistrate Mziwonke Hinxa, who, it is alleged, committed rape.

Three potential witnesses in the case died.

The committee heard that police officials sent the complainant “from pillar to post” and that they refused to open a case. She eventually wrote to the minister of justice in July 2016.

Before the commission could raise the matter, in January 2017, he provided a report from the then national director of public prosecutions which stated that he would not be prosecuted for the alleged rape.

He also furnished the commission with a statement, purportedly by the complainant, stating that a firm of attorneys paid her R100,000 to implicate him.

“However, the complainant insisted she was raped by Mr Hinxa and denied having ever made such a statement,” read the commission’s presentation to parliament.

The commission investigated the allegations of rape against Hinxa and decided to charge him with two counts of misconduct.

He was suspended on November 29, 2017. He lodged an application in the high court to have the suspension lifted, but it was dismissed with costs.

Hinxa’s misconduct inquiry started on October 30, 2018. He raised various issues which had to be argued and no evidence was led. He then requested a postponement to instruct an attorney.

In January this year, the hearing continued and four witnesses testified on behalf of the commission. Hinxa’s counsel asked for a postponement to enable them to consult with possible witnesses and prepare for cross-examination.

The hearing proceeded in February, with three further witnesses testifying. It was postponed to May, and continued with further testimony, and then again in July, when the complainant testified. The inquiry will continue from September 30 to October 4.

“We still have a problem with police officers threatening the complainant,” Meijer said.

While suspended, Hinxa is receiving remuneration.

Letitia Freeman

The commission also updated the committee on a case against senior magistrate and judicial head of the Mossel Bay District Court, Letitia Freeman.

Freeman is charged with 29 counts of misconduct, most of which involve false transport claims. She is also accused of failing to disclose a criminal conviction (theft in 1993) or her directorship of a company when she applied to become a senior magistrate.

The inquiry started in February 2018, but was postponed for Freeman to obtain legal representation. In March, it was again postponed because Freeman still didn’t have legal representation. It was postponed to September 2018.

She then lodged an application in the High Court, claiming that certain statements had to be made available to her, which the commission provided.

This delayed the matter further and in November 2018, the inquiry resumed. But a new presiding officer had to be appointed. The matter was postponed to January 2019 when Freeman pleaded not guilty to all the charges.

Most of the commission’s witnesses were heard in January and proceedings were postponed to April.

In April, all the evidence was led and the presiding officer postponed the matter to July for judgment and ordered both parties to file their heads of argument, which Freeman’s counsel failed to do.

Freeman was found guilty in July of all charges and the matter was postponed to September for the presiding officer to impose a sanction.

Freeman was provisionally suspended in September 2018 and is still receiving remuneration.

Judy van Schalkwyk

The matter of Kempton Park chief magistrate Judy van Schalkwyk dates back to 2013.

She is accused of abuse of power, attending to personal matters during work hours, gambling during work hours, borrowing money from subordinates and handing down judgments she had not written.

The inquiry started in October 2014.

There were several postponements and changes to legal counsel and in October 2015, Van Schalkwyk applied to the high court for a declaratory order about the validity of regulations for judicial officers in the lower courts.

The matter was initially set down for January 2017 and later, in March 2017.

The high court dismissed the application with costs on August 1, 2017.

Van Schalkwyk then petitioned the Supreme Court of Appeal (SCA), which dismissed the application in March 2018, also with costs.

Following the SCA’s ruling, the inquiry was supposed to proceed in April 2018, but was postponed to July 2018.

“The inquiry was postponed again to 27 September 2018. Ms Van Schalkwyk’s newly appointed attorney was not available,” read the commission’s presentation to parliament.

Evidence was eventually heard in October 2018 and the hearing continued in December and January.

“After the death of her attorney, Ms Van Schalkwyk elected to proceed in person. The commission’s first witness concluded her evidence on 22 January 2019, whereafter Ms Van Schalkwyk requested the matter to be postponed to instruct a new attorney and brief counsel.”

The hearing proceeded in April and again in June, when Van Schalkwyk terminated the services of her legal team and said she would proceed with her own defence.

The inquiry has been postponed and is expected to run from September 30 to October 4, and again in January 2020.

She has been on provisional suspension since 2013, and has not received any remuneration since September 2018.

Dismay

MPs expressed their dismay at the time it took to finalise the matters and Moosa said the commission was frustrated too.

“They will try every single trick in the book to frustrate you,” he said.

He said the commission couldn’t tell presiding officers how they ran tribunals.

Committee chairperson Bulelani Magwanishe said the complaints against the magistrates tarnished the name of the judicial system.

“We can’t allow it.”

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