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IN THE REPUBLIC OF SOUTH AFRICA

THE HIGH COURTOF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 95280/16

Reportable: No

Of interest to other judges: No

Revised.

30 May 2017

PUMELELE SIBUSISO HOLE                                                                                         APPLICANT

and

THE MAGISTRATE COMMISSION

OF SOUTH AFRICA                                                                                                          1^ST RESPONDENT

E K PATTERSON N.O

CHAIRPERSON OF THE DISCIPLINARY HEARING                                                   2^ND RESPONDENT

THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT              3^RD RESPONDENT

JUDGMENT

KHUMALO J

Introduction

[1] The Applicant, Mr P S Hole ("Mr Hole'') a regional magistrate in Kimberley, Northern Cape, is seeking by way of an urgent motion, an order:

[1.1] restraining and interdicting the Respondents from implementing a decision of the 1^st Respondent, the Magistrate’s Commission of South Africa, (“the Commission”), to remove him from the position of magistrate in terms of Section 13 (4) (a) (i) of the Magistrate Act 90 of 1993 (“the Act”); and

[1.2] interdicting and restraining the Minister of Justice (“Minister”) cited as the 3^rd Respondent, from withholding his salary.

[2] It is common cause that on the decision of his removal being taken the Minister effected Mr Hole's suspension immediately and the withholding of his salary. Both the decision of his removal and to withhold his salary are pending before the Parliament's Portfolio Committee tabled by the Minister in terms of s 13 (4) (b) and s 13 (4A) (b) of the Act and were based on the recommendations of the Commission.

[3] The Application for the interim relief is pending the final outcome of the Application Mr Hole  intends proceeding with as Part B, wherein he will be seeking an order:

[3.1] reviewing and setting aside the decision of the Chairperson to continue with the disciplinary proceedings against him on 4 May 2016;

[3.2] setting aside the disciplinary proceedings instituted by the Commission against him in terms of Regulation 26 of the Regulations for the Judicial Officers in the Lower Courts, 1994, as amended (“the JOLC Regulations”); and

[3.3] ordering the Commission to institute the proceedings de novo to be heard by a chairperson other than (Hatting) the 2^nd Respondent; and

[3.4] finally interdicting and restraining the Commission from implementing the decision and findings of the 2^nd Respondent pursuant to the proceedings which commenced on 4 May 2016.

[4] The Commission is the statutory body established in terms of s 2 of the Act bestowed with the responsibility for, inter alia, ensuring that the appointment, promotion, transfer, discharge and/or the disciplinary of judicial officials in lower courts, is carried out without favour or prejudice and the applicable laws and administrative directions in connection with such action are applied uniformly and correctly.

[5] The Minister consults with the Commission in carrying out his functions in respect of the career management, appointment and removal from office of magistrates. These functions are exercised by the Minister in terms of the powers bestowed on him by s 13 (3) of the Act, especially the authority to remove a magistrate from office, subject to the approval of the Cabinet. He is cited in that capacity in this Application.

[6] The Minister evoked these powers by tabling before Parliament on 6 December 2016 the recommendation for Mr Hole's suspension with immediate effect, his removal and withholding of his salary.

[7] The 2^nd Respondent, is cited in his capacity as the Chairperson of the Disciplinary  Hearing ("DH") that was appointed by the Commission in terms of Regulation 26 (6) (a) to preside over the DH of Mr Hole.

[8] The Chairperson and the Minister have withdrawn their notice to oppose and the Chairperson has issued a notice to abide by the decision of the court.

[9] At the beginning of the hearing of the Application Mr Hole indicated that he is  proceeding on an urgent basis only with the prayer for an order to restrain the Minister from withholding his salary. The prayer on his removal is to be heard as Part B of his Application.

[10] The recommendation to the Minister to withhold the payment of Applicant’s salary pending the confirmation of his removal was made by the Commission according to its determination in terms of s 13 (4A) (a) of the Act.

[11] The Application had come before Fourie J on 20 December 2016 and was removed from the roll with Mr Hole to pay the costs. The order authorised Mr Hole to file a Supplementary Affidavit if he deems it necessary.

[12] The Founding Affidavit of Mr Hole includes, inter alia, a certificate of urgency dated 6 December 2016, that was followed by the Commission's Answering Affidavit. The urgency certificate dealt with matters outside Mr Hole's Founding Affidavit. The Supplementary Affidavit filed subsequent thereto attempted to cure the shortcomings in the Founding Affidavit and the matter was enrolled for hearing again in the urgent motion court on 14 February 2017. Mr Hole did not file a Reply to the Commissions Answering Affidavit. Some of the documents filed with the Application are attached without their relevance being indicated to the court. The documents consists of reports, representations, memorandums,  letters without filing confirmatory affidavits or any authentication from their alleged authors who can attest to the truthfulness of their contents, rendering the Application challenging to deal with.

Historical background

[13] Mr Hole was appointed to the office of the magistracy on 1 September 2009. On or about 2010, the Regional Court President laid a complaint of misconduct against him with the Commission. On finalisation of its investigation of the complaint, the Commission  provisionally suspended Mr Hole with full salary on 29 September 2011. On 27 November 2011 the Commission formally charged him with ten (10) offences of misconduct, for contravening part of Regulation 25 of the JOLC Regulations. A notice initiating Disciplinary proceedings against him was served upon him on 23 July 2012 to appear before a misconduct Disciplinary Hearing (“DH”) set down to commence on 15 October 2012.

[14] The DH proceedings chaired by Mr Patterson, a Regional Magistrate (“the Chairperson”) were considerably delayed, due to being postponed eleven (11) times to afford Mr Hole, inter alia, an opportunity to obtain legal representation. In the interim the suspension was lifted on 19 June 2013 on condition he finalises his part-heard matters.

[15] The DH finally nearly got to a start on 27 February 2015, when Mr Hole at the hearing requested yet another postponement informing the Chairperson that he was launching an Application in the High Court to interdict the Commission and the Chairperson from proceeding with the DH. For that reason the Chairperson postponed the hearing to 23 March 2015 to afford Mr Hole  an opportunity to present proof that it is so. His High Court Application was subsequently served on 23 March 2015 on the three Respondents, essentially objecting to the Commission continuing with the DH proceedings on the basis of bias and to the chairing of the DH by Mr Patterson on the ground that he is of the same ranking with him. Consequently the Chairperson postponed the DH sine die until finalisation of the High Court Application.

[16] The DH was subsequently set down on 4 May 2016 following the Chairperson being called upon to continue with the hearing by the Commission. The appropriate notification was sent to Mr Hole's attorneys. The Chairperson proceeded to finalise the DH on 6 June 2016 notwithstanding Mr Hole's attorneys abstaining from partaking in the proceedings as a sign of protest against the Commission’s continuation with the DH whilst the High Court Application was pending. The Chairperson found Mr Hole guilty on 10 charges of serious misconduct. In the interim the State Attorney, acting on behalf of the Respondents had prior to finalisation of the DH, enrolled Mr Hole's High Court Application for hearing on 24 October 2016. Mr Hole at the time had not taken any further steps towards readying the matter for hearing  since the "Respondents Answering Affidavit was filed in October 2015. He instead on September 2016 removed the Application before its set down date on 24 October 2016 and tendered to pay the Respondents' wasted costs occasioned by the removal.

[17] Following the findings of the DH, the Commission, in compliance with Regulation 26, called upon Mr Hole to make representations as to why he should not be removed as a magistrate. After considering representations that were made on behalf of Mr Hole, the Ethics Committee of the Commission endorsed the findings as well as the recommendation of the Chairperson to remove Mr Hole.

[18] Mr Hole was then through his attorneys invited to make representations by 15 November 2016 to the Commission why his salary should not to be withheld. His representations were duly delivered to the Commission on 21 November 2016. On 25 November 2016 the Commission considered the representations and resolved to approve the withholding of his salary. Thereupon the Commission approved, the making of the recommendation for his removal and a determination to withhold his salary with effect from 1 December 2016 pending the finalisation of the Parliamentary process, to the Minister. On 1 December 2016 the Minister informed Mr Hole of the decision to suspend him with immediate effect pending his removal and that his salary would be withheld with effect from 1 December 2016 as per the Commission’s determination. The Minister subsequently tabled the matter in Parliament on the same day.

[19] It is this decision in respect of his salary that Mr Hole now seeks to interdict pending the Parliamentary process of his removal and the finalisation of his Application in Part B that he intends reinstating.

[20] Mr Hole asserts that he has a clear right derived from his employment contract that entitles him to receive remuneration until his salary is lawfully cancelled or suspended. The Chairperson is interfering with that right. He submits that the balance of convenience favours that his salary should continue to be paid in terms of the employment contract. He otherwise faces financial ruin and will suffer inevitable and irreparable harm if his salary is not reinstated.

[21] In addition he alleges that he will not be able to obtain redress in an Application in due course. He submits further that his pension deductions will be able to cover any salary that he should not have received.

[22] The Commission, in an affidavit deposed to by A P Louw argued that Mr Hole has  removed his High Court Application from the roll and tendered payment of their wasted costs. Therefore besides his tardiness in proceeding with the matter, the decision to remove him and withhold his salary was made when there was no matter pending at the High Court. He has furthermore been found guilty of gross misconduct and therefore unfit to occupy the office of magistrate. He therefore cannot continue to receive a salary. His removal and the simultaneous immediate suspension and withholding of his salary is therefore justified.

[23] The Commission argues further that Mr Hole had since his provisional suspension from office on 29 September 2011, continued to receive full remuneration, pending the outcome of the misconduct inquiry against him. The inquiry is now concluded and he has been found guilty. Due to the gravity of the misconduct a recommendation for his removal from office and followed by a determination of the withholding of his salary was made. As a result it holds the view that there seems to be no reason why Mr Hole should still be paid a salary, pending a resolution by Parliament whether or not he should be removed from office. Moreover that the balance of convenience are in their favour as there are no reasonable grounds to pay him a salary pending his removal.

The legal framework

[24] The removal from office and suspension of magistrates is strictly regulated in the Magistrate’s Act. In terms of s 13 (2) of the Act a magistrate shall not be suspended or removed from office except in accordance with the provisions of subsections (1), (2), (3), (4)  and (5). The relevant provisions in subsection (4) (a) read:

“If the Commission recommended that a Magistrate be removed from office-

(i) On the ground of misconduct,

(ii) ...

(iii) ...

the Minister must suspend that Magistrate from office or, if the Magistrate is at that stage provisionally suspended in terms of section (1) (a), confirm the suspension.

(b) A report in which the suspension in terms of paragraphs (a) of the Magistrate Act and the reason thereof are made known, must be tabled in Parliament by the Minister within fourteen (14) days of such suspension, if Parliament is then in session, or if Parliament is not then in session, within fourteen (14) days after the commencement of its next ensuing session.

(c) Parliament must, as soon as reasonably possible, pass a resolution as to whether or not the restoration to his or her office of a Magistrate so suspended is recommended.

(d) After a resolution has been passed by Parliament as contemplated in paragraph (c), the Minister shall restore the Magistrate concerned to his or her office or remove him or her from office, as the same may be.

(4A)(a) The remuneration of a Magistrate is not affected during a period of suspension in terms of subsection (3) (a) or in (4) (a), unless the Commission determines otherwise.

(b) If the Commission determines that the remuneration of a Magistrate shall be reduced or withheld in terms of paragraph (a), a report regarding that determination and the reasons thereof must be tabled in Parliament by the Minister within seven (7) days of such determination, if the Parliament is not then in session within seven (7) days after the commencement of its next ensuing session.

(c) Parliament must as soon as is reasonably possible, consider that report and pass a resolution as to whether or not the determination concerned is confirmed, or with or without commandment or set aside.

(d) If Parliament passes a resolution as contemplated in paragraph (c) that the determination is set aside, that determination shall lapse with effect from the date when the determination was first made. 

[25] The Parliamentary Portfolio Committee is seized with the matter to decide whether or not to confirm the determination by the Commission that Mr Hole's salary be withheld from 1 December 2016 pending the resolution of Parliament.

[26] As this is an application for an interdict, the question that first needs to be decided upon is whether or not the Applicant has established a (clear or prima facie) right to protect, against the determination that he alleges to be unjustifiable.

[27] The aspect of whether or not the magistrate’s appointment has been cancelled was argued as having a bearing on whether or not he has a right that the Respondents are invading or threatening to invade that needs to be protected. The magistrate argued that factually his appointment has not been cancelled, since the removal cannot be regarded as effective until the pronouncement by Parliament of its resolution or approval. He essentially asserts that he remains in office (which he refers as employment contract) notwithstanding his immediate suspension and therefore is entitled to a salary.

[28] The Act in s 13 (3) provides for the removal of a magistrate on the grounds of misconduct, incapacity or ill health to depend upon a resolution passed by Parliament. The Commission accordingly recommends to the Minister that the magistrate be removed from office. The Minister is not bound by such recommendations, however the recommendation must be forwarded to Parliament by the Minister, who must then act in accordance with Parliament’s resolution. The eventual removal of a magistrate from office is therefore by a resolution of Parliament which would be on the basis of the advice or a recommendation made by the Commission.

[29] After a resolution by Parliament as contemplated in paragraph (c), the Act in subsection 4 (a) (iv) provides that the Minister shall either restore the magistrate concerned to his or her office or remove him or her from office, in accordance with the Parliament's decision as the case may be. The removal ultimately factually takes place only after the resolution. Since the  Magistrate would have been essentially under suspension his removal having been deferred to Parliament either restoration or removal indispensable.

[30] A coherent argument therefore can be made on behalf of Mr Hole that the removal is not effective until the pronouncement of the resolution by Parliament, that is what was intended by the law. The magistrate is, albeit being under suspension (not being able to sit as a magistrate) which was with immediate effect, he is legally not yet removed (appointment cancelled) from office.

[31] According to the Act whilst he is still under suspension, awaiting the removal his salary is as a rule not to be withheld or affected during that period. The Act however does sanction the withholding of his salary whilst on suspension only on determination by the Commission s13 (4) (A) (a) . It further envisages or recognises that the withholding of salary may be effective immediately upon determination by the Commission as it provides for the lapsing of the determination to take effect from the date the determination was first made, when set aside by Parliament. The resolution stops the continuation of its operation from the date its envisaged to have taken effect.

[32] The grounds for the determination to withhold the magistrate’s salary are informed by the findings of the pre hearing investigation and the misconduct hearing conducted on behalf of the Commission and submissions made by the magistrate. It is therefore for that reason that the Commission's report on the determination is, according to the Act, to be sent to Parliament for it to establish the grounds for such determination. Its legal justification must therefore be consonant with the prescripts of the Constitution and the common law principles of fairness, legality and rationality. Therefore during its processes,  the Commission is required to discharge its functions consistent with judicial independence and the right that every person has under the Constitution to just administrative action. The decision therefore must be guided by fairness determined by a balanced assessment of the circumstances.

[33] The Commission’s reasons are articulated in its report and repeated in its affidavit. It  alleges in essence that as Mr Hole has been found guilty of serious misconduct, there is no reason why he should still be paid a salary, pending a resolution by Parliament whether or not he should be removed from office,  moreover the gravity of the misconduct and the fact that he has been found not fit to occupy the office of magistrate justifies the withholding of his salary.  Also that the balance of convenience are in its favour in that there are no reasonable grounds to pay Mr Hole’s salary pending his removal.

[34] In Van Rooyen & Others v The State and Others 2002 (5) SA 248 (CC) on 311 [175] it was held that:

“there is no reason why a magistrate who is not fit to hold office, and is removed from office for that reason, should be paid for the period during which she or he is under suspension prior to his removal. If the magistrate is not removed from office   the salary withheld has to be paid.”

[35] The withholding of salary is therefore also sanctioned by the Act and has been found by the Constitutional Court ("CC") to be justified under the circumstances in casu. The CC goes as further to support the withholding of the salary even before a pronouncement on the fitness of the magistrate is made whilst awaiting finalisation of an investigation of misconduct, or at the time of provisional suspension whilst awaiting confirmation from Parliament; see a statement in Van Rooyen [321] that:  

"The decision to investigate has to be taken by the Commission and that will be " competent only when the allegations, if established, are sufficiently serious to warrant removal from office. Such allegations are likely to be made only rarely. If they are, and if good reason exists for suspension, a withholding of salary during suspension is not necessarily disproportionate."

[36] Mr Hole is worse off, since he has been found guilty of very serious misconduct and not to be fit to occupy the office of the magistrate. The determination to withhold his salary is based on such findings and to that extent justified. The re-enrolment of his matter that he removed from the High Court does not impact on the determination, as Mr Hole is challenging the Commission's decision to proceed with the DH on the allegation of bias and that the Chairperson conducting the enquiry is of the same ranking with him. The Chairperson is a Regional Magistrate. The CC in Van Rooyen at 316H-317A held that the person appointed to preside over the disciplinary proceedings, therefore charged with the responsibility of making a finding on whether or not a magistrate has been guilty of misconduct, should be a judicial officer. The appointment is in line with the recommendation the CC made thereafter that Regulation 26 (6) (a) should be corrected by substituting  the word "person" with magistrate. The contention by Mr Hole has no basis in law; see Sema v Minister of Safety and Security 1995 (2) SA 401 (O) at 406I-J.

[37] Moreover, the Commission itself does not partake in the process of the investigation and or the DH. None of its members sit in the DH, even though it is the Commission that appoints the members of the DH. Furthermore, due to the Commission's composition it was held in Van Rooyen, that there was no reason to believe that the members of the Commission would not discharge these and their other duties with integrity, or that, viewed objectively, there was any reason to fear that they will not do so, taking into consideration the constitutional and judicial safeguards that are in place. It would therefore be unreasonable if Mr Hole's  perception of the Commission's bias towards him, that arises from an alleged delay to charge Mr Nqandala, should be the deciding factor of whether or not he was going to be subjected to a fair process by the DH. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judicial officers to administer justice without fear or favour and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predisposition; see S A Commercial Catering & Allied Workers Union v I & J Ltd [2000] ZACC 10; 2000 (8) BCLR 886(CC); [2000] JOL 7073; 2000 (3) SA 705 (CC).

[38] The prospects of Mr Hole's success on part B of the Application are in that regard seemingly very low. [Subject to the test being whether the Applicant should (not could) obtain final relief on those facts (see Gool v Minister of Justice and Another [1955] 3 All SA 115 ©; 1955 (2) SA 682 In Webster v Mitchell 1948 (1) SA 1186 (W) 1189-1190, the court explains what this means:

‘In the grant of a temporary interdict, apart from prejudice involved, the first question for the court in my view is whether, if interim protection is given, the Applicant could ever obtain the rights he seeks to protect. Prima facie that has to be shown. The use of the " phrase “prima facie” established though open to some doubt” indicates, I think, that more is required than merely to look at the allegations of the Applicant, but something short of a weighing up of the probabilities of conflicting versions is required. The proper manner of approach I consider is to take the facts as set out by the Applicant, together with any facts set out by the Respondent, which the Applicant cannot dispute, and to consider whether having   regard to the inherent probabilities, the Applicant could on those facts obtain final relief at a trial. The facts set out in contradiction by the Respondent should then be considered. If serious doubt is thrown on the case of the Applicant he could not succeed in obtaining temporary relief, for his right, prima facie established, may only be opened to some doubt."

[39] Mr Hole avers that he will suffer irreparable harm if he does not receive a salary without laying out any facts from which the court will be able to establish if indeed he will suffer irreparable harm. He not only limits his loss to financial harm but does not expatiate on how that will affect him. The onus being upon him to do so he has failed bleakly to discharge such onus.

[40] Now seeing that the application lacks any prospects of success and Mr Hole has also failed to satisfactorily establish facts from which the court can determine if he will indeed suffer irreparable harm, no case has made for the granting of the interdict.

[41] In his Supplementary Affidavit, Mr Hole states that his suspension was previously uplifted by parliament so that he can be able to finalise his part-head matters. He alleges to be presently finalising a part head matter and argues that the immediate suspension and payment of his salary  is irrational. He does the same thing as in the instance of irreparable harm. He does not mention how, taking into account the stage at which the proceedings in the matter mentioned are, will he suffer prejudice or any of the parties would be affected if the matter is to start de novo before another magistrate.  He has only indicated that they are awaiting an appointment of a legal aid attorney for the accused and the transcription of the record. A matter being part heard can mean anything beyond the Plea stage and before the leading of evidence, upon which there would less prejudice to the parties  if the matter was to start de novo.

[42] Mr Hole has therefore failed to make a proper case against the withholding of his salary. Under the circumstances the following order is made:

[42.1] The Application for the interim relief is dismissed with costs.

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N V KHUMALO  J

JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA

 

For the Applicants:                              D E Coetsee

Instructed by:                                      ENZO MEYERS ATTORNEYS

                                                            Ref: Mrs Rae/E69

                                                            Tel: 012 430 7757

For the Respondents:                          STATE ATTORNEY

Instructed by:                                      STATE ATTORNEY; PRETORIA

                                                            Ref: L B Tshivhase

                                                            Tel: 012 747 6100

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