MPs will, for the first time, consider resolutions calling for the sacking of several magistrates convicted of crimes, or who persistently demonstrate incompetence in their work.
Parliament’s test of the existing system emerged against the background of intensifying controversy over reforms to the oversight of judicial officers.
Legal advisers to Parliament’s justice committee are drafting resolutions for the National Assembly and National Council of Provinces calling for the dismissal of Port St Johns magistrate Pakamisa Mkalipi, whose work is described in a report by the magistrates’ commission as ”constantly poor and inefficient”.
Two other magistrates were temporarily reprieved this week after in-camera deliberations by a committee of both houses. Further action against the suspended Mitchells Plain magistrate, Elvis Thebe, who was convicted of murder in 2002, and PW Phiri, also accused of poor work performance, will not immediately be recommended. Phiri has until March 4 to offer a final explanation, while the committee was asked only to change Thebe’s suspension with full pay to suspension without pay.
”We sent that back to the magistrates commission because we think he should be removed entirely,” said one committee member.
Four additional cases could not be considered because of procedural hitches at the commission.
In terms of the Constitution, a judge can only be removed from the bench if the Judicial Service Commission finds that he or she ”suffers from an incapacity, is grossly incompetent, or is guilty of gross misconduct, and the National Assembly calls for that judge to be removed”.
That call must be backed by a two-thirds majority vote — which binds the president to dismiss the judge in question.
In the case of magistrates the recommendation comes from the magistrates commission and must be approved by both houses of Parliament, which then call on the justice minister to effect the dismissal.
The report — and the deliberations of the committee — were kept confidential, said chairperson Fatima Chohan-Kota, to ensure that the publication of damaging allegations did not harm magistrates before Parliament took action.
”It seems a pretty fundamental principle if we are serious about the independence and integrity of the judiciary,” Chohan-Kota said.
”People have the right to know what these judicial officers have been up to,” said Democratic Alliance justice spokesperson Sheila Camerer. She conceded, however, that there was a case for deliberating in closed session until firmer conclusions were reached.
The hearings come against the backdrop of an intensifying debate between the Department of Justice and Constitutional Development, the heads of court and the Judicial Service Commission, over amendments to the Judicial Service Commission Act and the proposed Judicial Conduct Tribunals Bill.
The search for consensus on legislation to set up disciplinary tribunals been going since Dullah Omar’s tenure as justice minister in the late 1990s, but has been lent new urgency — and tension — by the public battle over transformation and the independence of the judiciary fought in the press and the corridors of the courts in recent months.
The Ministry of Justice believes the tribunals should include lay assessors rather than judges only — something Judicial Service Commission chairperson Chief Justice Arthur Chaskalson has firmly resisted on the grounds that this would infringe on the separation of powers.
Many in the government and the African National Congress argue that the judiciary cannot adequately police itself.
”People need to be able to hold judges accountable if they are lazy, or incompetent — it’s that simple,” said one ANC official. ”We think the chief justice is wrong on this issue, and it has been bogged down for too long.”