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 CONSTITUTIO
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