ATC171115: Report of the Portfolio Committee on Justice and Correctional Services on the suspension from office of Magistrate XB Stuurman, Additional Magistrate at East London, tabled in terms of section 13(4)(b) of the Magistrates Act, 1993, dated 15 November 2017

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the suspension from office of Magistrate XB Stuurman, Additional Magistrate at East London, tabled in terms of section 13(4)(b) of the Magistrates Act, 1993, dated 15 November 2017
 

The Portfolio Committee on Justice and Correctional Services, having considered the request by the Minister of Justice and Correctional Services to suspend Ms XB Stuurman from office of Magistrate, reports as follows:

 

1. Ms Stuurman is an additional magistrate in East London. She has served the Department of Justice and Constitutional Development as a prosecutor and rendered other legal services since 1 August 1996. She was appointed to the bench on 5 May 2003.

 

1. Ms Stuurman was initially charged with 18 counts of misconduct, contained in three separate charge sheets: the first is dated 12 July 2013 but was signed by the Chairperson of the Commission on 7 November 2013; the second and the third are dated 3 December 2014. The Person appointed by the Magistrates Commission to Lead the Evidence (PLE) at the misconduct hearing, a Senior Magistrate, withdrew charge 2 contained in the first charge sheet. Ms Stuurman placed all the remaining charges in dispute. The Presiding Officer at the misconduct inquiry, with the agreement of the parties, had the charges as set out in the second and the third charge sheets, dated 3 December 2013, renumbered for purpose of convenience and continuity and dealt with them accordingly in her judgment. 

 

1. The misconduct inquiry against Ms Stuurman commenced on 13 March 2015. Ms Stuurman raised a point in limine: she contended that the evidence that led to the resolution of the Commission's Ethics Committee that she be charged with misconduct was obtained in a manner contrary to the procedure laid down by the Constitutional Court in Van Rooyen and Others v S and Others 2002 (8) BCLR 810 CC. Furthermore, she contended that the investigation into the complaints against her was not conducted in a manner consistent with natural justice, as required by the Constitution as held in the Van Rooyen case. She submitted that the only reasonable conclusion that could be drawn from the resolution to charge her was that it was "preconceived, irrespective of any other side of the story that could rebut it". Ms Stuurman therefore argued that the Commission was biased in deciding to charge her with misconduct.

 

1. The Person Leading the Evidence (PLE) on behalf of the Commission, was afforded the opportunity to counter the points raised in limine and submitted written arguments to the Presiding Officer in this regard.

 

1. On 30 June 2015 and having heard arguments from both parties, the Presiding Officer found no merits in the points in limine raised by Ms Stuurman and dismissed her Special Pleas. 

 

1. The misconduct charges preferred against Ms Stuurman relate to various incidents which occurred during the period 2011 and 2014 at which:

 

• Ms Stuurman would insult and belittle a number of clerks employed at the East London Magistrate's Court;
• She would use offensive language; be discourteous and disrespectful; and raise her voice and shout at the clerks and their supervisor(s) in the presence of other staff members, the public and legal practitioners (attorneys, a Senior Magistrate, the Chief Magistrate and Judicial Head of Office).
• She would issue and publish emails to administrative staff using offensive language;
• She refused to accept a Notice of Motion from the Respondents' Attorneys, the Sheriff of the Magistrates Court, East London and the Chief Magistrate's Secretary and failed to adhere to a prayer as set out in the Notice of Motion;
• She published and distributed a document in which she discussed, remarked and commented on matters pertaining to her profession with the media and in public in a manner that is detrimental to the image of the office of magistrate.

 

1. Thirteen (13) witnesses testified on behalf of the Commission. Ms Stuurman cross-examined most of the witnesses at great length. She put it to some witnesses that she would be calling a number of witnesses to corroborate her version. Ms Stuurman however elected not to testify in her defense and only called one witness - the Head of the Cluster - to testify. 

 

1. Having heard, considered and evaluated the evidence presented before her, the Presiding Officer delivered her judgment and found Ms Stuurman guilty on 17 counts of misconduct. The matter was postponed to 16 January 2017 for purposes of sentencing. 

 

1. On 16 January 2017, Ms Stuurman refused to place any mitigating circumstances before the tribunal, arguing that she was not provided with a certified copy of the record of the proceedings against her. Her request to be excused from the proceedings was refused by the Presiding Officer. Ms Stuurman nevertheless excused herself but returned a few minutes later, sat down, repeated her request and left the inquiry again for the second time, indicating that she was excusing herself. The Presiding Officer decided to proceed with the inquiry in her absence in terms of Regulation 26(14) of the Regulations for Judicial Officers in the Lower Courts, 1994 (the Regulations).

 

1. In imposing an appropriate sanction, the Presiding Officer considered all the mitigating and aggravating factors. She imposed a sanction and submitted her reasons for recommending to the Magistrates Commission in terms of Regulation 26(17)(b) of the Regulations that Ms Stuurman be removed from office, as contemplated in section 13(4)(a)(i) of the Magistrates Act, 90 of 1993.

 

1. On 19 January 2017, Ms Stuurman was advised of her right to lodge representations to the Commission.  She furnished the Commission with her representations on 17 February 2017. The Presiding Officer in terms of Regulation 26(21) of the Regulations forwarded her additional reasons for her recommendation to the Commission and Ms Stuurman on 22 March 2017.

 

1. The misconduct proceedings were mechanically recorded and the transcription contains 1784 pages. Ms Stuurman claimed that the record of proceedings, which were submitted to the Commission, "is not a true record of what happened during the hearing". The Presiding Officer indicated that she could not ignore the submissions made by Ms Stuurman and that, when she was preparing her judgment, "upon her own perusal of the transcripts she discovered that Ms Stuurman is correct in saying that there are inconsistencies in the transcribed record". The Presiding Officer, therefore, deemed it necessary to rectify the discrepancies in the transcribed record before delivering judgment and advised both the PLE and Ms Stuurman in writing. 

 

1. The Presiding Officer, the PLE and Ms Stuurman on a number of dates together listened to the audio recordings, correlating these with the transcribed record. The PLE provided each of them with a copy of the transcribed record. The three of them with the assistance of the stenographer made the necessary corrections on his/her own set of transcripts.  The corrections on the record were made to the satisfaction of them all.  

 

1. The Commission, having considered all the evidence/documents before it, recommended to the Minister that the recommendation of the Presiding Officer be accepted and that Ms Stuurman be removed from office on the grounds of misconduct. The Commission is of the view that Ms Stuurman's conduct as set out in the charges is so serious that it justifies her removal from office.

 

Recommendation

 

1. Having considered the Commission’s report on the suspension from office of Ms XB Stuurman and the Minister’s request, the Committee recommends that the National Assembly confirm the suspension.

 

 

Report to be considered