Report of the Select Committee on Security and Constitutional Affairs on the Determination of the Magistrates Commission to withhold the Remuneration of Mr H W Moldenhauer, Former Chief Magistrate, Pretoria whilst he was Provisionally Suspended from Office, dated 14 September 2005:

The Select Committee on Security and Constitutional Affairs, having considered the report on the determination by the Magistrates’ Commission to withhold Mr H W Moldenhauer’s remuneration, tabled by the Minister for Justice and Constitutional Development in terms of section 13(4A)(b) of the Magistrates Act, 1993 (Act No 90 of 1993) reports as follows:

The Select Committee noted that on 10 March 2003 the Magistrates Commission provisionally suspended Mr Moldenhauer from office in terms of section 13(3)(a) of the Magistrates Act, 1993. Section 13 (subsection (3)(a) in particular) has since, with effect from 1 November 2003, been amended to the effect that the Magistrates Commission is no longer in a position to provisionally suspend a magistrate from office. Since 1 November 2003 the power to provisionally suspend a magistrate from office is vested in the Minister for Justice and Constitutional Development. The power is exercised on the advice of the Magistrates Commission. Section 13(3)(a) of the Act, as it was at the time of Mr Moldenhauer’s provisional suspension is therefore no longer in operation.

The Select Committee further noted that the Magistrates Commission, on 3 March 2005, determined to withhold Mr Moldenhauer’s remuneration in terms of section 13(4A) of the Act. However, in terms of section 13(4A)(a) of the Act, the Commission is only in a position to make such a determination in respect of a Magistrate who is under provisional suspension in terms of section 13(3)(a) of the Act, i.e a provisional suspension effected by the Minister. Since Mr Moldenhauer was provisionally suspended by the Commission in terms of a former process, the Commission, in the Committee’s view, could not have determined to withhold his remuneration in terms of section 13(4A) of the Act.

Alternatively, if it is argued that the reference in section 13(4A) to section (3)(a) of the Act, should be interpreted to include a Magistrate suspended in terms of section 13(3)(a) of the Act, prior to its amendment, as the Commission apparently did when taking its decision in terms of section 13(4A) of the Act, Mr Moldenhauer should also have been entitled to the benefit of the provisions of section 13(3)(e) of the Act, which was introduced into the Act by the Amendment affected by Parliament in November 2003 and which provides as follows:

"The provisional suspension of a magistrate in terms of paragraph (a) lapses after 60 days from the date of the suspension, unless the Commission, within that period, commences its inquiry into the allegation in question by causing a written notice containing the allegation concerned to be served on the magistrate."

Consequently, Mr Moldenhauer’s provisional suspension which was effected on 10 March 2003 should have automatically lapsed after 60 days, i.e during June 2003. The inquiry in terms of section 13(3)(e) only commenced on 7 April 2005, more than two years later. In such a case the Magistrates Commission could not have determined to withhold Mr Moldenhauer’s salary during March 2005 since technically he would have not been under suspension at the time.

In terms of section 13(4A)(c) of the Magistrates Act, Parliament must, as soon as is reasonably possible, consider the report tabled by the Minister and pass a resolution as to whether or not the determination made by the Magistrates Commission is confirmed, either with or without amendment, or set aside. The Select Committee is of the opinion that the Commission could not have taken the decision in terms of section 13(4A)(a) of the Act and accordingly recommends that the Council resolves to set aside the determination by the Magistrates Commission to withhold Mr Moldenhauer’s remuneration.

Report to be considered.