ATC180828: Report of Portfolio Committee on Justice and Correctional Services on the provisional suspension from the office of Magistrate of Mr MD Hinxa, Chief Magistrate, Bloemfontein, tabled in terms of section 13(3)(b) of the Magistrates Act, 1993 (Act No 90 of 1993), dated 28 August 2018

Justice and Correctional Services

Report of Portfolio Committee on Justice and Correctional Services on the provisional suspension from the office of Magistrate of Mr MD Hinxa, Chief Magistrate, Bloemfontein, tabled in terms of section 13(3)(b) of the Magistrates Act, 1993 (Act No 90 of 1993), dated 28 August 2018
 

The Portfolio Committee on Justice and Correctional Services, having considered the Magistrates Commission’s report dated 29 November 2017, as tabled by the Minister for Justice and Correctional Service, on the provisional suspension from office of Mr MD Hinxa, the Chief Magistrate at Bloemfontein, pending the outcome of a misconduct hearing into his fitness to hold the office of magistrate as required by section 13(3)(b) of the Magistrates Act, 90 of 1993, reports as follows:

1. On 29 June 2016, a woman from Botshabelo lodged a complaint with the Minister alleging that Mr Hinxa had raped her. The complaint was submitted to the Department and, thereafter, referred to the Magistrates Commission for attention. The complainant had reported the matter on several occasions to different police stations but they all refused to open a case. Hence her letter to the Minister as a last resort.

 

1. On 14 January 2017, before the matter could serve before the Commission's Ethics Committee, Mr Hinxa apparently approached the then Secretary of the Commission, indicating to him that he became aware that a complaint was filed with the Commission against him by a member of the public for alleged rape. Mr Hinxa showed the Secretary a report from the Director of Public Prosecutions, Free State (DPP) indicating that he would not be prosecuted. Mr Hinxa furnished the Secretary with a sworn statement, allegedly made by the complainant, indicating that she was paid R100 000-00 by Maroka Attorneys to implicate him. The Secretary submitted the scanned documentation to the Commission's Ethics Division suggesting that the complainant be advised that her "complaint will not be followed on and to close the file against Mr Hinxa". The complainant persisted that Mr Hinxa had raped her and denied having ever made such a statement. The names and signatures on her letter of complaint and the statement provided by Mr Hinxa differ substantially. Many other unclarified issues arise from the documents provided by Mr Hinxa to the Commission’s former Secretary.

 

1. The Commission resolved to conduct a preliminary investigation into the allegations of rape against Mr Hinxa. Two Regional Magistrates were appointed on 17 February 2017 to conduct a preliminary investigation in terms of Regulation 26(1) of the Regulations for Judicial Officers in the Lower Courts, 1994. Mr Hinxa was advised accordingly in writing.

 

1. Mr Hinxa, in an email dated 22 February 2017, directed representations to the Secretary of the Commission, requesting the Commission to "promptly review and set aside the decision of the Ethics Committee to investigate him”. He based his request mainly on the statement dated 21 June 2015, purportedly made by the complainant, in which she withdrew the complaint against him. The Ethics Committee considered Mr Hinxa's representations and resolved "…to stand by its decision to conduct a preliminary investigation in terms of Regulation 26(1) of the Regulations, due to the serious nature of the allegations and far reaching consequences thereof on both sides. The Committee further resolved that the matter be accordingly placed before the EXCO of the Magistrates Commission for its endorsement." The Commission EXCO, at its meeting held on 10 April 2017, resolved that the preliminary investigation against Mr Hinxa must proceed.

 

1. The Investigating Officers filed their combined report with the Commission on 12 October 2017. The Investigating Officers, based on the evidence they obtained, were of the view that the evidence justified that Mr Hinxa be charged with misconduct.

 

1. It is common cause that Mr Hinxa had approached the office of the Director Public Prosecutions (DPP) Free State, concerning the criminal case filed against him by the complainant. It appears that the DPP's decision to decline to prosecute Mr Hinxa on a charge of rape is, among others, based on an incomplete investigation, including the withdrawal statement purportedly made by the complainant. On 18 October 2017, the National Director of Prosecutions (NDPP) was provided with a copy of the docket, the preliminary investigation report and the supporting statements, which were obtained during the preliminary investigation, with a recommendation to reconsider the matter and take the steps he may deem fit.

 

1. In a letter dated 27 October 2017, Mr Hinxa was invited to show cause why the Commission should not recommend that he be provisionally suspended from office in terms of Section 13(3)(a) of the Act, pending the outcome of an investigation into his fitness to hold the office of magistrate.

 

1. Mr Hinxa, through his attorney, responded and furnished the Commission with his representations dated 9 November 2017. 

 

1. On 24 November 2017, having due regard to the serious nature of the allegations, the totality of the information at hand and Mr Hinxa's representations, the Commission resolved to charge Mr Hinxa with misconduct and to recommend that he be provisionally suspended from office in terms of section 13(3)(a) of the Magistrates Act 90 of 1993. 

 

1. The Commission is of the view that:

• Mr Hinxa’s representations mainly rely on the Director of Public Prosecution's (DPP) decision not to criminally prosecute him. The evidence obtained during the preliminary investigation indicate that there is sufficient evidence to charge Mr Hinxa with misconduct.
• The existing evidence against Mr Hinxa is of such a serious nature as to make it inappropriate for him to perform the functions of a Magistrate while the allegations are being investigated.
• Mr Hinxa's conduct tarnishes the good name, dignity and esteem of the office of magistrate and the administration of justice.
• Without anticipating the outcome of the investigation into his fitness to hold the office of magistrate, the available evidence against Mr Hinxa is of such a serious nature that it would justify his removal from office, should he be found guilty of the misconduct charges that are preferred against him.

 

1. In light of the above, the Minister decided to provisionally suspend Mr MD Hinxa, Chief Magistrate, from the office of Magistrate with immediate effect, pending the outcome of an investigation/misconduct hearing into his fitness to hold office, and submitted his report for consideration by Parliament in terms of section 13(3)(b) of the Magistrates Act, 1993.

Recommendation

Having considered the Magistrates Commission’s report dated 29 November 2017, as tabled by the Minister for Justice and Correctional Services, on the provisional suspension from office of Mr MD Hinxa, pending the outcome of an investigation/misconduct hearing into his fitness to hold the office of magistrate, the Committee recommends that the National Assembly confirm Mr MD Hinxa’s provisional suspension from the office of Magistrate.

 

Report to be considered.