ATC101110: Report Upliftment of the Provisional Suspension from Office of Magistrate M K Chauke

NCOP Security and Justice

Report of the Select Committee on Security and Constitutional Development on the progress report and the upliftment of the provisional suspension from Office of Magistrate M K Chauke, dated 10 November 2010

 

Introduction

 

The Select Committee on Security and Constitutional Development, having considered the progress report and the upliftment of the provisional suspension from office of a magistrate, Mr M K Chauke, an additional Magistrate at Pretoria, Gauteng, tabled by the Minister for Justice and Constitutional Development, in terms of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:

 

Background

 

1. On 8 November 2007 the Specialised Commercial Crime Court in Pretoria convicted Mr Chauke, his wife and his son of contravening section 37 of the General Law Amendment Act, No. 62 of 1955.  On 16 November 2007 they were all sentenced to 12 months imprisonment, suspended for a period of five years on condition that they are not again convicted of contravening section 37 of Act 62 of 1955 during the period of suspension.

 

1. Mr Chauke’s appeal against his crimi­nal conviction had been set down on the roll for 8 March 2010.

 

1. The Minister, on the advice of the Magistrates Commission, provisionally suspended Mr Chauke from office with effect from 5 February 2010. The suspension was recommended based on three charges of misconduct namely, the criminal conviction above, contravening the Regulations for Judicial Officers in the Lower Courts, 1994, and contravening the Code of Conduct for Magi­strates.

 

1. The suspension was confirmed by both Houses of Parliament on 1 and 4 June 2010 respectively.

 

1. Having heard both parties on appeal, the High Court delivered judgment on 15 June 2010.  Mr Chauke’s criminal conviction and sentence were set aside. 

 

1. The Magistrates Commission commenced with the misconduct inquiry against Mr Chauke in respect of the remaining two charges of misconduct.  The basis of the allegation was that he, during the period October 2002 to July 2004, during and after official office hours, retained and forwarded e-mails to other persons containing explicit pornographic material. This was done on and from a computer supplied to him by the Department of Justice and Constitutional Development for the exclusive use of the execution of his official duties as a magistrate. It is also alleged that he used the said computer to access internet sites containing explicit pornographic or obscene material.

 

1. The Ethics Division studied the judgment on appeal in respect of Mr Chauke’s crimi­nal conviction and was of the view that the Commission would not be able to successfully prove misconduct on a balance of probabilities in respect of the first charge. No evidence was therefore led in support of this count. The first count of misconduct fell away.

 

1. Having considered the evidence at the misconduct inquiry regarding count two, the Presiding Officer, on 5 July 2010, found Mr Chauke guilty of misconduct in that he failed to act at all times in a manner which upholds and promotes the good name, dignity and esteem of the office of magistrate and the administration of justice.  The Presiding Officer postponed the imposition of a sanction for a period of 12 months on certain conditions in terms of regulation 26(17)(a) of the Regulations for Judicial Officers in the Lower Courts, 1994.  He was found not guilty on count three.    

 

1. Since the criminal conviction of theft, which formed the basis of Mr Chauke’s provisional suspension, has been set aside by the High Court, Mr Chauke’s further pro­vi­sional suspension would not be justified.  The nature and seriousness of the charge of misconduct on which he was found guilty does not warrant his provi­sional suspension either and the sentence imposed does not impact on his fitness to hold office.

 

1. The Minister for Justice and Constitutional Development concurs with the Magistrates Commissions’ recommendation and has accordingly uplifted Mr Chauke’s provisional suspension from office.

 

Conclusion

The Select Committee on Security and Constitutional Development, having considered the progress report and the upliftment of the provisional suspension from office of magistrate Mr M K Chauke, tabled by the Minister for Justice and Constitutional Development, in terms of the Magistrates Act, 1993 (Act no 90 of 1993), in Parliament on 5 November 2010, reports that it concurs with the Minister’s decision.

 

Report to be considered.