Conduct

There are mechanisms in the Magistrates Act, 90 of 1993 (the Act) to safeguard security of tenure for Magistrates.

According to section 13 (3) of the Act and as was underscored by the Constitutional Court in S v Van Rooyen, a magistrate can be removed from office prior to his or her retirement age only for reasons of misconduct, continuous ill health or incapacity.

In practice, allegations of misconduct, continuous ill health and incapacity must be reported to the Magistrates Commission who in turn will conduct investigations as well as a hearing. Where the Commission finds the magistrate guilty of the allegations, it may make recommendations for the Minister to remove the magistrate.

The Minister may however decide to impose another appropriate remedy, which may not necessarily be to remove the magistrate from office.

The Minister is required to account to Parliament by tabling a report to Parliament if any decision has been made to suspend or remove a magistrate. This report must be tabled by the Minister within 14 days after the suspension or removal of the magistrate, if Parliament is in session. If Parliament is not in session, the report must be tabled within 14 days after the commencement of Parliament’s next session.

Image taken from Paper 2: The Coalface of Justice pg. 15