Opinionista Alison Tilley 1 October 2014

Asked and answered: Do judges matter at magistrate court level?

Do judges matter for ordinary people? And if we say they do, then surely they matter at all levels of the courts, and especially the courts that the majority of people appear before. Most of us will never have the money to run a civil trial in the high court – a magistrate dealing with criminal law is the most likely face of the law in South Africa for most people. But do we really behave as if judges matter at magistrate court level?

Asked and answered: Do judges matter at magistrate court level?

Do judges matter for ordinary people? And if we say they do, then surely they matter at all levels of the courts, and especially the courts that the majority of people appear before. Most of us will never have the money to run a civil trial in the high court – a magistrate dealing with criminal law is the most likely face of the law in South Africa for most people. But do we really behave as if judges matter at magistrate court level? By ALISON TILLEY.

Let’s look at the example of Magistrate Raesetea Malahlela. Her case has been discussed extensively in the justice committee in Parliament, and the record may be found on the PMG website. The minutes of the meeting reads in part:

[Mrs Malahlela] has been under probation for 10 years as her conduct and performance did not appear to warrant a permanent appointment, despite the attempts of the Magistrates Commission to address the situation, including its arranged visit to her in Delmas (which she failed to attend), its attempts to arrange for a hearing on her medical issues, which was later aborted at her instance, mentoring that was also deemed extremely difficult, contributing to the resignation of her mentor, and subsequent attempts to mentor her by another individual.

The first concerns about her seem to go back quite some time. She was appointed in in 1994, and her permanent appointment has never been finalised. The Magistrates Commission points out that:

Alison-Tilley-JudgesMatter-graphic.jpg

The justice committee based their discussion in Parliament on the 20 August 2014 on the report by the Magistrates Commission. The Commission pointed out in that session that when decisions were taken by the Commission, and are conveyed to the justice minister, he then reports to Parliament, which must either approve, change (in some instances) or disapprove the minister’s report.

Now, how did the Parliamentary committee respond to this litany of disaster? Well, they did not rise up as one, and tell this magistrate to leave the magistracy. They did not even confirm a provisional suspension, on full pay. What the chair said is:

The Commission had not produced evidence of its attempts to develop Ms Malahlela. This was particularly important since she was from a previously disadvantage [sic] background. Factors such as transformation needed to be taken into consideration, and the administration of justice could not be the sole criterion.

The PMG minutes go on to say:

The Committee did not have a quorum and requested that further information be presented, and the views expressed by Members would be recorded and brought before the full Committee again.

So for those of you in Delmas appearing in front of this magistrate, sorry for you.

This is clearly not tenable, and I am not speaking only about the cases of those unfortunate souls who appear in front of this court. If we are to take the transformation of the judiciary seriously, we need to be building our capacity from the ground up. The magistracy cannot be a sinecure for failed lawyers, who sleep in court, ignore court orders, and don’t get on with the business of judging.

The process for the appointment of judges does not take into account that the magistracy is not cleaning house in the way they should. The assumption seems to be that if you are a magistrate, you are a fit and proper person for an acting appointment. Well, that is clearly not always the case. In fact, we have had in the last round of hearings of the Judicial Services Commission (JSC), an acting judge, previously a magistrate, applying for a permanent position faced the following question, as verbatim as I can type:

What needs to be cleared up is this. A complaint has been launched against you, an objection against [your] candidacy. It relates to maintenance. The maintenance case is registered for three children who are yours. In the hearing conducted, the results showed that there is a 99% possibility that you are the father. You don’t accept the results, and you had further tests conducted.”

This is a magistrate, and an acting judge in the High Court.

The process that is currently used for acting judges doesn’t:

  1. Make it clear how acting positions are filled;

  2. Make it clear how the magistracy in particular, but other candidates as well, can get acting experience;

  3. Ensure that due diligence is done on candidates who are getting acting experience; or

  4. Leave time at the JSC hearings for thorough analysis of judgments of nominees to inform discussion of the appointments.

This would mean consistently looking to branches for the profession other than advocates, such as the magistracy, for candidates. There are some difficulties with this. Firstly, we don’t know how Judges President identify and mentor candidates. There is no public process around that, or even a common secret process, as far as I know. So it may be that Judges President are identifying candidates through their networks, or other informal means. This will clearly exclude some candidates, and include others. There is also no formal process to check candidate’s qualifications. And there appears, oddly enough, little appetite to ensure that the magistracy, and the quality of the magistracy, is in fact taken seriously.

The transformation of the judiciary requires that we behave as though judges matter. In all things. DM

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