A misconduct commission looking into magistrates’ behaviour has found alcohol abuse to be a ‘big problem’
Khadija Magardie The country’s magistrates’ courts are experiencing severe bottlenecks in hand-ling and finalising cases a situation unlikely to be helped by lurid tales of tipsiness in the courts. The Magistrates’ Commission this week said that 60% of disciplinary proceedings brought against magistrates involved drunkenness.
The revelation that some magistrates are unable to maintain a firm grasp on their gavels is likely to further dent the already tarnished reputation of the 1 507 judicial officers running the country’s 434 lower courts.
Unlike judges, magistrates may be disciplined by a specially constituted body set up by law. The 1993 Magistrates Act empowers a commission “to ensure that the appointment, promotion, transfer, or discharge of, or disciplinary steps against, judicial officers in the lower courts takes place without favour or prejudice”.
The head of the misconduct division of the commission, magistrate Johannes Meijer, says there is “a big problem” with magistrates and liquor, giving rise to a series of offences, including drunken driving, inebriation on duty, and failing to show up for work because of a hangover. The problem, he says, is most serious in the Eastern Cape and KwaZulu-Natal.
The body that calls magistrates to heel is on the second floor of a government-issue building facing a statue of “Oom Paul” (Kruger), in Church Square, Pretoria. The corridor walls are full of sepia-tinted graduation-style portraits of unsmiling, moustachioed white men in beige suits, sitting stiffly on benches. They are interspersed by a number of framed university degrees, and certificates of attendance at various law-related courses.
Until 1998 the Magistrates’ Commission was stacked with llllcard-carrying Broederbond members, given the task of ensuring that the magistracy toed the government line, and did not issue too many flighty judgments that could prejudice the fortunes of “die Vaderland”.
The new commission, although in the same offices, has committed itself to transforming the profession, and rooting out bad apples.
Flipping through a thick file containing the documented cases, Meijer rattles off various offences that magistrates have been found guilty of. They range from the standard traffic fines; to the predictable a magistrate who sat for years before it was discovered that he had falsified his qualification; to the bizarre an Eastern Cape magistrate convicted of kidnapping and assault.
Other examples of misconduct involve magistrates falsifying expense-claim forms, misusing state property, especially vehicles, and “being lldiscourteous in court”.
If a magistrate pleads guilty, or is later found guilty following an investigation, he or she is sentenced appropriately by the minister of justice, following a recommendation by the commission.
Types of sentences include withholding promotion, a reprimand, a fine, suspension or dismissal.
The commission has a strict policy of not interfering with the outcome of a trial. But it does get review requests from judgements criticised by the high courts. It has a mechanism to prevent this occurring regularly if a magistrate with less than two years’ service imposes a sentence of more than six months, or imprisonment without the option of a fine, the case automatically goes on review. Within seven days the court papers should be typed, processed and handed in for review.
According to insiders, a lack of training, especially on new legislation, has a domino effect on the courts. If a magistrate is not sufficiently familiar with the Criminal Procedure Act, for example, or amendments to it, the result could prejudice the case of an accused resulting either in their incorrect acquittal, or an unduly harsh sentence.
Several high court judges, who sit on appeals of magistrates’ decisions, have complained of “gross irregularity” in sentencing, as well as “procedurally incorrect” trials resulting in appeal cases that should never have reached them in the first place, had magi-strates been adequately informed on the changing face of the law. This also results in excessively long court rolls for the high courts.
The magistracy is the coalface of the South African judicial system and wields immense power over people’s lives. The World Fact-Book of Criminal Justice Systems estimates that up to 99% of all the criminal cases in South Africa are tried in the lower courts, comprising the district and regional magistrates’ courts.
Magistrates’ courts have penal jurisdiction in all matters except murder, rape and treason. The maximum sentence that may be imposed by the district courts is three years, and a fine not exceeding R60?000 and a maximum of 15 years, and a fine up to R300?000 for the regional courts.
But despite its significance, the magistracy is often met with derision by other members of the legal fraternity, who regard magistrates as the bottom of the legal food chain. They have long been snubbed by other branches of the profession and accused of irregularity in sentencing, lack of familiarity with the law and incapacity, to name but a few.
Earlier this year, the National Directorate of Public Prosecutions complained that court cases were being unreasonably delayed because magistrates, especially those in district courts, were not at their posts when needed. The president of the Transvaal provincial division, Bernard Ngoepe, lashed out at critics of the magistracy, saying it was “unacceptable” to blame magistrates for case backlogs or ineffective management of court hours.
But the words by the National Directorate were not entirely without substance one of the most recurrent complaints brought before the Magistrates’ Commission concern absenteeism which commission officials say are often tied to long hours drinking at watering holes after work.
Meijer says the extent of the problem with magistrates is largely dependent on the activity or non-activity of the regional or district head who is responsible for monitoring what is happening in the courts in the vicinity. He adds that he “gets the feeling” that wayward magistrates are more common in the far-flung areas of the country, where there is little official supervision.
Magistrates in the Eastern Cape appear to have a penchant for errant behaviour. Earlier this year a Willowmore, Eastern Cape, magistrate was found to have “acted improperly” at a local guest house and transferred. In the same province, the chief magistrate of Keiskammahoek, near King William’s Town, was arrested for allegedly driving a state vehicle under the influence of alcohol. An Okhlamba magistrate pleaded guilty to misconduct after negligently approving a construction deal.
Courts in urban areas have not been spared the scourge of irresponsible magisterial behavior.
Some of the current stories about magistrates border on the apocryphal one magistrate in Cape Town convicted and sentenced a man accused of rape about 20 years ago on the basis of an allegation by the complainant and her mother that she (the complainant) had performed a ritual religious bath after the incident. The enthusiastic magistrate apparently gave an hour-long religious sermon in handing down sentence.
Magistrates beyond our borders have also been involved in misdemeanours. Last year a magistrate in Gebabas, Namibia, was arrested and charged with breaking into several homes in the area.
Critics of the magistracy have said there is a wide perception that magistrates are somehow less qualified than other members of the profession. But a magistrate must hold a minimum qualification of a three-year legal qualification, or have passed the civil service higher examinations.
Regular seminars are also held for criminal-court magistrates, where the criminal law, law of evi-dence, law of criminal procedure and assessment for sentence are discussed. Although they are not compelled to study further, a magistrate’s prospects for promotion are largely determined by a keenness to improve his or her knowledge of the law.
The Justice College in Pretoria, which coordinates all the legal training for magistrates, prosecutors and court interpreters, now also holds “social context training” for magistrates to counter the perception that magistrates, until fairly recently mostly white, male and Afrikaans-speaking, would somehow be prejudiced against or insensitive to the conditions of black defendants.
Not everyone is unsympathetic to the conditions under which magistrates have to work. A former judge this week said that people should try to sympathise with magistrates because they are “forced to work long hours under trying circumstances”.
He said if magistrates were paid decent salaries, the magistracy could attract what he called “the right calibre of people”.