Doesn't the department monitor the performance of magistrates?
They're independent, so their performance is monitored by the Magistrates Commission.
Don't you have any oversight?
No. The process, as in this case, is that the matter got sent on review to the high court.
Clearly, there's a review system. Why isn't it working?
In what sense is it not working? Was it not picked up, has it not been corrected?
She's still working as a magistrate, isn't she?
Yes.
Is that how the review system is supposed to work?
It's not for the judges hearing a review to suspend a magistrate. It's for the Magistrates Commission to conduct an investigation, take a decision and request the minister to implement it.
If the Magistrates Commission decides a magistrate must step down, it has to refer this to the ministry?
To parliament.
Via the ministry?
Yes, via the minister of justice. To refer it to both houses of parliament. The minister can suspend a magistrate where the Magistrates Commission has requested that. Parliament can lift the suspension if they disagree with it. When it comes to removal, that is done by parliament.
Shouldn't you be concerned that this matter wasn't flagged by the department?
I'm very concerned about those sentences and what is happening. The problem is the power to do anything. That power is limited by judicial independence.
Does this protect judges and magistrates who are clearly unprofessional and incompetent?
It protects them as a whole, and then requires that where there are problems, an investigation be conducted by an independent body. The protection is further that the removal of a judge or magistrate has to be done by parliament.
Has your department recommended to parliament that this magistrate be removed?
No, we don't have the power to do that. We've checked that the matter has been referred to the Magistrates Commission.
It found she's been handing down glaringly irregular sentences since at least two years ago when a child rapist walked out of court a free man. So it's not an ideal situation, is it?
No. I have asked the national director of public prosecutions what the prosecutors did in this case, because the reviews were referred by the acting regional court president to the high court. I then asked why did the prosecutors in those cases not have her sentences taken on review.
At least 17 cases have now been identified for review. Don't you find that frightening?
I do. I'm shocked. But the situation is unique in the sense that the regional court president of KZN is himself on suspension.
Over the last eight years more than 50 magistrates have been fired for corruption, murder and sexual assault. Is it time for the selection criteria to the bench to be revisited?
I think the issue does need to be looked at, yes.
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