DISCIPLINARY PROCESSES FOR SOUTH AFRICAN MAGISTRATES: REFLECTIONS ON THE MAGISTRATES ACT 90 OF 1993 AND THE LABOUR RELATIONS ACT 66 OF 1995

Abstract

An employment relationship creates certain rights and protection for the respective parties concerned. For example, an employee has the right not to be unfairly dismissed or subjected to unfair labour practices in the execution of his or her duties. On the other hand, an employer has the right to lay down rules in order to regulate the conduct required from its employees. The Code of Good Practice recognises this right of the employer: Dismissal , which requires all employers to adopt disciplinary rules that establish the standard of conduct required from employees. If an employee fails to adhere to the required rules or standards, the employer has recourse in the form of discipline. Disciplinary action is usually initiated in response to poor work performance or unwarranted behaviour by workers and is aimed at restraining employees from behaving in a manner that could hamper production and the functioning of the organisation. When an employer exercises the right to discipline, regard must be had to the employee’s right to be treated fairly. It is therefore important that disciplinary procedures should maintain a proper balance between the rights of the respective parties in the disciplining process.
The aim of this note is to compare the procedures for disciplining conventional employees in terms of the LRA with the procedures to discipline magistrates in terms of the Magistrates Act. The purpose of the comparison is to evaluate whether the disciplinary regime applicable to magistrates effectively ensures that they are appropriately and timeously disciplined when necessary in order to ensure a well-functioning judiciary. The note will commence with an outline of the legislative and regulatory framework of the respective disciplinary processes. This will be followed by an evaluation of whether the disciplinary regime governing magistrates contributes to a well-functioning judicial system. The note will conclude with recommendations regarding streamlined processes that would provide role players in the judiciary with certainty about the applicable remedies and the appropriate dispute resolution institutions where their disputes may be resolved.