| (1) | If a magistrate is accused of misconduct, the Commission may appoint a magistrate or an appropriately qualified person (hereinafter called the investigating officer) to conduct a preliminary investigation and to obtain evidence in order to determine whether there are any grounds for a charge of misconduct against the magistrate: Provided that, if the Commission is of the opinion that there is prima facie evidence to support the charge, the Commission may charge the magistrate concerned in writing with misconduct without the said preliminary investigation. |
| (2) | The investigating officer appointed in terms of subregulation (1) may, for the purposes of the preliminary investigation— |
| (a) | summon any person who, in his or her opinion may be able to give material information concerning the subject of the investigation, or who he or she suspects or believes has in his or her possession or custody or under his or her control any book, document or object which has any bearing on the subject of the investigation, to appear before the investigating officer at the time and place specified in the summons, to be questioned or to produce the book, document or object; and |
| (b) | retain a book, document or object referred to in paragraph (a) for the duration of the investigation. |
| (3) | After the conclusion of the preliminary investigation contemplated in subregulation (1), the investigating officer shall recommend to the Commission whether or not the magistrate concerned should be charged, and if so, what the contents of the charge in question should be. |
| (4) | If, after the conclusion of the preliminary investigation, the Commission is of the opinion that— |
| (a) | there are sufficient grounds for a charge of misconduct against the magistrate concerned and the allegations are of such a serious nature that they may justify the removal from office of the magistrate, the Commission may, in writing, charge the magistrate with misconduct; |
| (b) | the allegations are not of such a serious nature, the Commission shall issue directions, excluding the institution of misconduct proceedings, as to the manner in which the matter is to be dealt with. |
| (5) | A charge contemplated in subregulation (1) or (4)(a) shall be accompanied by an invitation to the magistrate charged to send or deliver within a reasonable period specified in the invitation to a person likewise specified, a written explanation regarding the misconduct with which he or she is charged in order to establish which allegations are admitted and which allegations are disputed. |
| (a) | For purposes of a misconduct hearing, 'judicial presiding officer' includes a 'judicial officer' contemplated in section 1 of the Magistrates Courts Act, 1944 (Act No. 32 of 1944) and 'judicial officer' contemplated in section 1 of the Superior Courts Act, 2013 (Act No. 10 of 2013). |
| (b) | If the Commission decides that a magistrate should be subjected to a misconduct hearing, the Commission shall appoint— |
| (i) | a judicial presiding officer to preside at that hearing; and |
| (ii) | a magistrate or an appropriately qualified person to lead evidence at that hearing. |
[Regulation 26(6) substituted by section 4(a) and (b) of Notice No. R. 1440, GG45395, dated 29 October 2021]
(7)
| (a) | The magistrate or person appointed in terms of subregulation (6)(b) must in writing notify the magistrate charged of the date, time and venue of his or her hearing. |
| (b) | The magistrate or person appointed in terms of subregulation (6)(b) or a person designated by him or her, must personally hand the notice contemplated in paragraph (a) to the magistrate charged. |
| (c) | The magistrate charged must immediately acknowledge receipt of the notice contemplated in paragraph (a). |
| (d) | If a magistrate charged refuses to sign receipt of a notice contemplated in paragraph (a), the notice must be handed to that magistrate charged in the presence of any witness, who must sign in confirmation that the notice was handed to the magistrate charged in his or her presence. |
| (8) | The judicial presiding officer shall, at the commencement of a misconduct hearing— |
| (a) | inform the magistrate charged about his or her right to remain silent; and |
| (b) | ascertain from the magistrate charged, which allegations are disputed and which allegations are admitted. |
| (9) | A judicial presiding officer may, if the magistrate charged admits at any time that he or she is guilty of the charge, question the magistrate, and if the judicial presiding officer is satisfied that the magistrate is guilty as charged, and after confirming that the version deposed to by the magistrate charged is in accordance with the facts held by the person referred to in subregulation (6)(b), the judicial presiding officer shall make a finding to the effect that the magistrate charged is guilty. |
| (10) | A magistrate or person appointed in terms of subregulation (6)(b) may, for the purposes of a misconduct hearing— |
| (a) | summon any person who, in his or her opinion, may be able to give material information concerning the subject of the hearing, or who he or she suspects or believes has in his or her possession or custody or under his or her control any book, document or object which has any bearing on the subject of the hearing, to appear before the judicial presiding officer at the time and place specified in the summons, to be questioned or to produce such book, document or object; |
| (b) | retain a book, document or object referred to in paragraph (a) for the duration of the hearing; |
| (c) | lead evidence and arguments in support of the charge and cross-examine witnesses; and |
| (d) | call upon and administer an oath to or accept an affirmation from any person present at the hearing who was or might have been summoned in terms of paragraph (a), and question him or her and order him or her to produce any book, document or object in his or her possession or custody or under his or her control that he or she suspects or believes to have a bearing on the subject of the hearing. |
| (11) | The law relating to privilege, as applicable to a witness summoned to give evidence in a civil trial before a court of law or to produce a book, document or object, shall mutatis mutandis, apply in relation to the examination of, or the production of any book, document or object to the judicial presiding officer by, any person called as a witness in terms of this regulation. |
| (12) | At a misconduct hearing the magistrate charged shall— |
| (i) | to be personally present and to be assisted or represented by another person; |
| (iii) | to give evidence; and |
| (iv) | either personally or through a representative— |
| (cc) | to cross-examine any person called as a witness in support of the charge; and |
| (dd) | to have access to documents produced in evidence; and |
| (b) | show cause why he or she is not guilty of misconduct, if the misconduct with which he or she is charged amounts to an offence of which he or she was convicted by a court of law. |
| (13) | The judicial presiding officer may, at any stage of the hearing, on own accord or on request of the magistrate charged, summon or cause to be summoned any person who, in his or her opinion, may be able to give material information concerning the subject of the hearing, or who he or she suspects or believes has in his or her possession or custody or under his or her control any book, document or object which has any bearing on the subject of the hearing, to appear before the judicial presiding officer at the time and place specified in the summons, to be questioned or to produce such book, document or object. |
(14)
| (a) | A judicial presiding officer may order that a misconduct hearing be proceeded with even if the magistrate charged is absent from the proceedings or any part thereof, subject thereto that the judicial presiding officer must be satisfied that proper notice of the hearing has been handed to the magistrate charged as contemplated in subregulation (7). |
| (b) | A magistrate contemplated in paragraph (a), may— |
| (i) | at any stage, prior to a finding, inspect the record of proceeding of a hearing; and |
| (ii) | if he or she was not assisted or represented at the hearing, with the permission of the judicial presiding officer examine any witness who testified during his or her absence. |
| (15) | After the conclusion of the evidence and the arguments or address at a misconduct hearing, the judicial presiding officer shall on a balance of probabilities make a finding as to whether the magistrate charged is guilty or not guilty of the misconduct as charged. |
(16)
| (a) | A judicial presiding officer shall provide his or her reasons for any finding. |
| (b) | The judicial presiding officer shall give the magistrate charged and the magistrate or person who led the evidence at a misconduct hearing an opportunity to present any aggravating or mitigating factors. |
| (17) | The judicial presiding officer at a misconduct hearing may if a finding of guilty has been made— |
| (a) | impose one of the following sanctions or any combination thereof on the magistrate charged: |
| (i) | Caution or reprimand the magistrate; |
| (ii) | specify the manner in which he or she should be cautioned or reprimanded; |
| (iii) | direct the magistrate to tender an apology in a manner specified by the judicial presiding officer; or |
| (iv) | postpone the imposition of a sanction for a period not exceeding 12 months with or without conditions which may include counselling, treatment or attendance of a training programme, or |
| (b) | recommend to the Commission that the magistrate concerned be removed from office as contemplated in section 13 of the Act. |
| (18) | After the conclusion of a misconduct hearing the judicial presiding officer shall inform or notify the magistrate concerned of his or her right to lodge representations in terms of subregulation (20). |
| (19) | After the conclusion of a misconduct hearing the judicial presiding officer shall— |
| (a) | inform or notify the Commission and the magistrate concerned of— |
| (i) | his or her finding in relation to the charge and the reasons therefor; |
| (ii) | his or her finding in relation to the aggravating or mitigating factors presented at the hearing; |
| (iii) | the sanction imposed and the reasons therefor or his or her recommendation in terms of subregulation (17)(b) and the reasons therefor, and |
| (b) | furnish the Commission with a copy of the record of proceedings. |
(20)
| (a) | If a recommendation is made in terms of subregulation (17)(b), the magistrate concerned may lodge representations with the Commission. |
| (b) | The representations contemplated in paragraph (a) must— |
| (ii) | be lodged with the Commission within 21 working days after the findings of the judicial presiding officer has come to the notice of the magistrate concerned; and |
| (iii) | set out the grounds for his or her representations. |
| (c) | The magistrate concerned shall forward a copy of the notice of the representations, together with the grounds for his or her representations to the judicial presiding officer. |
| (21) | Within 21 working days after receipt of the notice of representations contemplated in subregulation (20), the judicial presiding officer may forward any additional reasons for his or her recommendation to the Commission and the magistrate concerned. |
| (22) | After consideration of the relevant documents referred to in subregulation (19), the Commission may— |
| (a) | recommend to Parliament that the magistrate concerned be removed from office as contemplated in section 13 of the Act in which case the Commission shall submit to Parliament all the relevant documents with regard to that misconduct hearing: Provided that if the magistrate charged lodges representations in terms of subregulation (20) any recommendation or documentation shall not be submitted to Parliament until the Commission has made a finding regarding the representations; or |
| (b) | if the Commission is of the opinion that the magistrate concerned should not be removed from office, impose any of the sanctions contemplated in subregulation (17)(a). |
| (23) | A person summoned as a witness to appear before an investigating officer or a judicial presiding officer for the purposes of a preliminary investigation, or a misconduct hearing shall receive allowances in accordance with the tariff of allowances prescribed under section 191 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), by notice in the Gazette. |
| (24) | A summons in respect of a preliminary investigation or a misconduct hearing shall be issued on a form prescribed by the Commission and shall be served in a manner determined by the Commission. |
| (25) | A misconduct hearing shall be in public unless the judicial presiding officer determines otherwise. |
| (26) | Evidentiary material obtained during a preliminary investigation which is not disputed by the magistrate concerned may, upon mere production thereof, be admitted at a misconduct hearing. |
[Regulation 26 substituted by section 4(b) of Notice No. R. 1440, GG45395, dated 29 October 2021]
