Introduction to the Magistrates Commission

The Magistrates Commission is a statutory body established in terms of the Magistrates Act, No. 90 of 1993. The Commission is chaired by a judge, designated by the President in consultation with the Chief Justice.

The current Chairperson of the Magistrates Commission is Judge Aubrey Ledwaba. He is also the Deputy Judge President of the North Gauteng Division of the High Court in Pretoria.

The Deputy Minister of Justice and Constitutional Development, Mr John Jeffery, is also one of the Commissioners.

The objectives of the Commission are, amongst others, as follows:

To promote continuous training of magistrates appointed in the Magistrates Courts [District and Regional Courts].
To advise the Minister of Justice (currently Ronald Lamola) regarding the appointment of magistrates.
To advise or to make recommendations to, or report to the Minister, any information for Parliament regarding any matter which is of interest for the independence in the dispensing of justice and the efficiency of the administration of justice in the Magistrates Courts.
To carry out investigations and make recommendations to the Minister regarding the suspension and removal from office of magistrates.

As an important arm of the judiciary, it is important that the magistracy be fully understood. They are central to the hiring and firing of magistrates. In this article we seek to shed some light into how the Magistrates Commission is constituted.

27 Members of the Magistrates Commission

The Magistrates Commission is a statutory body established in terms of section 2 of the Magistrates Act, No. 90 of 1993 (the Act). Section 2 of the Act provides that, “there is hereby established a commission, to be known as the Magistrates Commission, with the powers and duties conferred on or assigned to the commission by or under this Act or any other law.”

Section 3 of the Act makes provision for the constitution of the Magistrates Commission and the period of office of members of the Magistrates Commission. In terms of the Act the Magistrates Commission shall constitute a total of 27 members made up as follows:

• A judge of the High Court of South Africa, as chairperson, designated by the President in consultation with the Chief Justice;
• The Minister or his or her nominee, who must be an officer of the Department of Justice;
• Two regional magistrates, one to be designated by the respective regional magistrates and the other by the President after consultation with the respective regional magistrates;
• Two magistrates with the rank of chief magistrates, one to be designated by the respective chief magistrate and the other by the President after consultation with the respective chief magistrates;
• Two magistrates who do not hold the rank of regional magistrate or chief magistrate, one to be designated by the magistrates’ profession and the other by the President after consultation with the magistrates’ profession;
• Two practising advocates designated by the Minister after consultation with the advocate’s profession;
• Two practising attorneys designated by the Minister after consultation with the attorney’s profession;
• One teacher of law designated by the Minister after consultation with the teachers of law of South African universities;
• The Head: Justice College;
• Four persons designated by the National Assembly from among its members, at least two of whom must be members of opposition parties represented in the Assembly;
• Four permanent delegates to the National Council of Provinces and their alternates designated together by the Council with a supporting vote of at least six provinces; and
• Section 3(1)(a)(xii) of the Act requires that ive fit and proper persons appointed by the President in consultation with the Cabinet, at least two of whom shall not be involved in the administration of justice or the practice of law in the ordinary course of their business.

Here is a list of the current members of the Magistrates Commission:

In terms of the provisions of section 6 of the Act the Magistrates Commission has five committees to which it assigns work to. These committees are: 

• the Executive Committee; 
• the Legislation Committee; 
• the Appointments of Magistrates Committee; 
• the Grievances and Service Conditions Committee; and 
• the Ethics Committee. 

The Magistrates Commission tasks the Appointments of Magistrates Committee to conduct the interviews of candidates. The commissioners who sit in the Appointments of Magistrates Committee are all expected to be present when candidates are interviewed for positions in the magistrates’ courts. After the Appointments of Magistrates Committee concludes the interview process, it must report to the full Magistrates Commission on the interviews. 

The functions of the Magistrates Commission

The functions of the Magistrates Commission, in order to achieve its objectives, are amongst others as follows:

• To conduct interviews of magistrates and advise the Minister of Justice and Constitutional Development regarding the appointment of magistrates.
• To carry out or cause to be carried out any investigation it deems necessary in respect of the suspension or removal from office of magistrates..
• To obtain access to official information or documents.
• To summon any person to appear before it for questioning or require from any person a written explanation in respect of any matter falling within the ambit of the Commission’s objectives.

Any conduct by a magistrate that is alleged to be improper may be reported to the Judicial Head of the Court wherein the magistrate concerned presides.
A complaint against a magistrate must be reported by means of a written declaration under oath or affirmation, specifying;

the nature of the matter;
the grounds on which an investigation is viewed necessary;
the names of the magistrate, other persons involved and of any witnesses;
the date and time of the incident(s), and
all other relevant information known to the complainant.

If the complainant is of the view that his/her concerns have not been properly or adequately addressed by the Judicial Head of Court, the complainant may direct his/her complaint to the Secretary of the Magistrates Commission for the attention of the Complaints Committee within the Magistrates Commission.

In turn, the Complaints Committee shall report to the Magistrates Commission on any findings, point of view or recommendation in respect of a matter so investigated. Further, the Complaints Committee shall, as soon as possible, make the recommendations of an investigation available to the complainant and to any person implicated thereby. 

In terms of the Constitution of the Republic of South Africa Act, No. 108 of 1996, the courts are independent and subject only to the Constitution and the law. The Magistrates Commission is therefore not empowered to interfere with the judicial discretion of a magistrate. An aggrieved party who is dissatisfied with a judgment, ruling or sentence may approach a court of higher jurisdiction for review or appeal.