Magistrate for 26 years has the book thrown at him
High Court says the magistrate’s case shows that ‘even the guardians sometimes need to be guarded’
A magistrate with 26 years’ experience broke every rule in the book — and now it’s being thrown at him.
The district magistrate’s hopelessness “showed that even the guardians sometimes need to be guarded”, according to Daniel Thulare, an acting judge at the High Court in Cape Town and the city’s chief magistrate.
The attitude of the man — who was not identified — during a trial in the Darling Periodical Court “leaves a disconcerting revelation of a lack of knowledge or appreciation of his constitutional obligations”, said Thulare.
The acting judge overturned the housebreaking conviction of Maxwell Gordon and said copies of his judgment would be sent to the Magistrates Commission, which is responsible for disciplining magistrates, and the National Prosecuting Authority.Another copy would go to Justice Minister Michael Masutha to draw his attention to the resource-starved plight of periodical courts.
Gordon’s case came to Thulare’s attention after he was sent for sentencing to a regional magistrate. Concerned about irregularities in his trial, she referred the matter to the high court, where Thulare was also shocked.
“The principle of ubuntu, which is at the core of being and defines Africa, is simply absent,” he said in a judgment on Wednesday. “Nothing on the record gave any hope that the magistrate played his crucial role of giving content and meaning to the rights of an unrepresented accused.
“It is impossible to conclude that [Gordon] was not denied his fundamental right to remain silent.“The magistrate had 26 years on the bench. It is unfortunate that a person holding his rank for such a long period did not accept the nature of a magistrate’s court.”
One of the main problems Thulare highlighted was that there was no record of the proceedings in Gordon’s trial.
“[The magistrate] ... had a duty to ensure that his acts and the proceedings before him were captured and preserved for authority, truth, testimony and memory, especially for the possibility of review and appeal,” he said.
Thulare also took aim at the workings of periodical courts, which he said were generally held in far-flung areas “where the vast majority of the previously disadvantaged people are found”.
He said: “The provision of elementary resources like functionally literate clerks of the court, court machines and court interpreters is very necessary at these courts.
“It cannot be that justice is divisible, and those from outside the cities find themselves on an island of miseries within the sea of a democratic and constitutional South Africa.”