by Parliament
REPORT
SUSPENSION OF A MAGISTRATE: MR D
JACOBS, MAGISTRATE AT CLOCOLAN
1.
PURPOSE
The purpose of this report
is to inform Parliament of the suspension of Mr D Jacobs, the magistrate and
Judicial Head at Clocolan, pending consideration by Parliament of a
recommendation by the Magistrates Commission for his removal from office in
terms of section 13(4)(a)(iii)
of the Magistrates Act, No 90 of 1993.
2.
BACKGROUND
2.1 Mr
Jacobs is the magistrate and Judicial Head of the District Court, Clocolan. He
joined the Department of Justice and Constitutional Development on 20 January
1983 and was appointed as Magistrate on 14 June 1997. He serves the district of Clocolan as
Magistrate since 1 January 1998.
2.2 Mr
Jacobs was charged with twelve (12) counts of misconduct in terms of regulation
26 of the Regulations for Judicial Officers in Lower Courts, 1994 (herinafter
the Regulations). He denied all the
allegations against him but was prepared to make certain admissions. The inquiry
commenced on 6 August 2010, continued on 22 September 2010, 6, 7 December 2010
and was concluded on 18 April 2011. Mr
Jacobs was legally represented throughout the inquiry.
3.
DISCUSSION
3.1 The inquiry commenced in
terms of regulation 26 (misconduct proceedings) of the Regulations but was by mutual agreement between the
parties terminated, as reports by Mr Jacobs’ Clinical Psychologist were handed
in and after he testified at the inquiry on the contents thereof, which
evidence indicated Mr Jacobs’ incapacity to carry out his duties
efficiently. The Ethics Committee of the
Magistrates Commission was approached for approval to immediately commence with
an inquiry into Mr Jacobs’ incapacity to carry out his duties efficiently in
terms of Regulation 27 of the Regulations.
Due process was followed and the Presiding Officer in the misconduct
inquiry was by mutual agreement between the parties and with the approval of
the Ethics Committee duly appointed to conduct the incapacity
investigation.
3.2 The
Clinical Psychologist testified that:
a)
he started consulting with Mr Jacobs as a therapeutically psychologist
during June/July 2010;
b)
Mr Jacobs suffers from post traumatic stress disorder;
c)
the disorder was untreated/neglected which resulted in amongst others Mr
Jacobs’ alcohol abuse,
d)
he is of the opinion that brain damage/brain atrophy was caused due to
Mr Jacobs’ abuse of alcohol which is incurable and which could present the
following characteristics:
(i)
inconsequent behaviour,
(ii)
judgment varies from day to day
(iii)
a lack of insight
e)
Mr Jacobs’ memory has been affected.
f)
he is of the opinion that Mr Jacobs does not have the capacity to carry
out the duties of office of magistrate any longer
g)
that Mr Jacobs needs to be examined by a neurologist and a
neuropsychologist to give expert evidence in respect of the factual brain
damage and the cause thereof.
3.3 Various statements (inter
alia from Magistrates, members from the bar and the side bar, and
administrative staff) and reports were handed in and admitted as evidence at
the inquiry. The statements all confirm
the essence of the initial charges of misconduct against Mr Jacobs.
- that he absented
himself on numerous occasions from the office without prior approval or leave,
- that he on numerous
occasions was intoxicated during office hours and unable to perform his
official duties.
3.4 The Chairperson at the
inquiry was addressed by both the Commission’s representative and Mr Jacobs’ legal representative. Both
were ad idem that Mr Jacobs
does not have the capacity to carry out his duties in an efficient manner. The Chairperson found it clear and undisputed
that Mr Jacobs does not have the capacity to carry out his functions as a
magistrate and informed Mr Jacobs accordingly in terms of regulation 27(5) of
the Regulations.
3.5 Mr Jacobs, through his
legal representative, was, at the conclusion of the inquiry on 18 April 2011,
given the opportunity in terms of regulation 28(2) of the Regulations to submit
to the Chairperson of the Commission his written comments regarding the finding
and the reasons therefor. He was
nevertheless again given another opportunity to do so on 29 June 2011. He however failed/refused to respond.
3.6 The Chairperson (the person who conducts the
incapacity investigation) shall in terms of
regulation 28(1) (b) of the Regulations forward to the Commission the
record of the proceedings of the investigation and all documentary evidence or
certified copies thereof admitted at the investigation, as well as a written
exposition of his or her reasons for the finding and any observations on the
case which he or she may desire to make.
3.7
The magistrate concerned (Mr Jacobs) may, within 10 (ten) working days,
after the date on which the finding of an incapacity hearing has come to his
notice, submit to the Chairperson of the Commission written comments regarding
the finding and the reasons therefor.
3.8
In terms of regulation 28(3) the Commission shall consider the relevant
documents regarding an incapacity investigation, together with the comments of
the magistrate, if any, and shall, if it is as a result of an incapacity
investigation, of the opinion that a magistrate should be removed from office
due to incapacity, recommend to Parliament that the magistrate be removed from
office as contemplated in section 13 of the Act.
3.9 At its meeting held on
21 and 22 July 2011 the Magistrates Commission considered the contents of the
documents as required by regulation 28(3)(a) of the Regulations.
3.10 Based on the undisputed
evidence placed before the investigating officer (Chairperson) at the
investigation into Mr Jacobs’ capacity to carry out his duties of office
efficiently, and the latter’s finding and reasons therefore, the Commission
resolved in terms of section 13(4)(a)iii) of the Act, read with regulation
28(3)(b) of the Regulations, to recommend to the Minister of Justice and
Constitutional Development to remove Mr Jacobs from office on account of
incapacity to carry out the duties of his office efficiently.
3.11 The Commission further
noted the fact that Mr Jacobs did not submit any written
comment/representations in respect of the finding made.
4.
LEGISLATIVE REQUIREMENTS
4.1 In terms of section
13(4)(a) of the Magistrates Act, No 90 of 1993, the Minister for Justice and
Constitutional Development, if the Magistrates Commission would recommend that
a Magistrate be removed from office on inter
alia account of incapacity to carry out his duties of office efficiently,
must suspend that Magistrate from office or if the Magistrate is at that stage
provisionally suspended in terms of the Act, confirm the suspension.
4.2 A report in which such
suspension and the reason therefore are made known, must be tabled in
Parliament by the Minister within 14 days of such suspension, if Parliament is
then in session, or if Parliament is not then in session, within 14 days after
the commencement of its next ensuing session.
4.3 Parliament must then, as
soon as it is reasonably possible, pass a resolution as to whether or not the
restoration to his/her office of the Magistrate so suspended is recommended.
4.4 After a resolution has
been passed by Parliament as contemplated in paragraph 4.3, the Minister shall
restore the Magistrate concerned to his/her office or remove him/her from
office, as the case may be.
4.5 As indicated above, once
the Magistrates Commission has recommended that a Magistrate be removed from
office on the ground of misconduct, the Minister must suspend that Magistrate
from office.
4.6 On this basis I have suspended Mr Jacobs from office.
- CONCLUSION
This report, as required by section 13(4)(b) of the magistrates Act,
1993 is submitted for Parliament’s
consideration.
GIVEN UNDER MY HAND AT ………………..THIS………DAY OF ……………………..2011
MR J T RADEBE, MP
MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT.
No comments:
Post a Comment