| (a) |
Subject to the provisions of the Magistrates Act, 1993, and section 10 of this Act, the Minister may appoint for any district or sub-district a magistrate, one or more additional magistrates or one of more assistant magistrates and for every regional division a magistrate or magistrates. |
[Section 9(1)(a) substituted by section 1(a) of Act No. 19 of 2010]
| (aA) |
The Minister may, in a particular case or generally and subject to such directions as he or she may deem fit, delegate the power conferred upon him or her by paragraph (a) to the Director-General of his or her department or another officer of that department with the rank of director or an equivalent or higher rank or a magistrate at the head of a regional division or a person occupying the office of chief magistrate, including an acting chief magistrate. |
[Section 9(1)(aA) substituted by section 3(a) of Act No. 66 of 1998]
| (b) |
[Section 9(1)(b) deleted by section 1(b) of Act No. 19 of 2010]. |
| (c) |
[Section 9(1)(c) deleted by section 3 of Act No. 31 of 2008]. |
| (d) |
A magistrate, an additional magistrate or an assistant magistrate of a district or subdistrict may at the same time also be a magistrate, an additional magistrate or an assistant magistrate of another district. |
| (1A) |
[Section 9(1A) deleted by section 2 of Act No. 34 of 1986] |
(2)
| (a) |
Any person appointed as judicial officer under this section shall, before commencing with his or her functions in terms of this Act for the first time, take an oath or make an affirmation subscribed by him or her, in the form set out below: |
'I, ............................................................................................................ (full name) do hereby swear/solemnly affirm that in my capacity as a judicial officer I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.'.
[Section 9(2)(a) substituted by section 1 of Act No. 62 of 2000]
| (b) |
Any such oath or affirmation shall be taken or made in open court before the most senior available magistrate of the district concerned or a justice of the peace who shall at the foot thereof endorse a statement of the fact that it was taken or made before him or her and of the date on which it was so taken or made and append his or her signature thereto. |
| (3) |
Subject to subsections (4) and (5), the Minister, after consultation with the head of the court concerned, may appoint any appropriately qualified and fit and proper person to act— |
| (a) |
in the place of any magistrate, additional magistrate or assistant magistrate who is not available; or |
| (b) |
in any vacant office of magistrate; or |
| (c) |
as a magistrate in addition to any magistrate of a regional division or a district. |
[Section 9(3) substituted by section 1 of Act No. 28 of 2003]
| (a) |
A magistrate at the head of a regional division or a person occupying the office of chief magistrate, including an acting chief magistrate authorized thereto in writing by the Minister, may— |
| (i) |
whenever a magistrate, additional magistrate or assistant magistrate is for any reason unavailable to carry out the functions of his or her office; and |
| (ii) |
in consultation with the Minister or an officer in the Department of Justice and Constitutional Development designated by the Minister, |
temporarily appoint any competent person in the place of the magistrate concerned.
| (b) |
An appointment in terms of paragraph (a) remains valid for the duration of the unavailability of the magistrate in question, or for a period not exceeding five consecutive court days, whichever period is the shortest. |
| (c) |
Any person appointed in terms of paragraph (a) may— |
| (i) |
upon the expiry of the appointment in terms of paragraph (b) may- |
| (ii) |
if the magistrate in whose place the appointment has been made, is still unavailable, |
be reappointed once only in terms of paragraph (a) in the place of that magistrate.
[Section 9(4) substituted by section 1 of Act No. 28 of 2003]
| (a) |
Any person appointed in terms of subsection (3)— |
| (i) |
holds that office for a period determined by the Minister at the time of the appointment, but the period so determined may not exceed 12 months; and |
| (ii) |
may be reappointed to that office in terms of subsection (3). |
| (b) |
The Minister must cause Parliament and the Magistrates Commission to be informed whenever any vacancy in the office of a magistrate has remained unfilled for a continuous period exceeding 12 months. |
[Section 9(5) substituted by section 1 of Act No. 24 of 2015, GG 39587 dated 8 January 2016]]
| (6) |
Any person appointed in terms of subsection (3) or (4) is also deemed to have been so appointed in respect of any period during which he or she is necessarily engaged in connection with the disposal of any proceedings— |
| (a) |
in which he or she has participated as such a magistrate, including an application for leave to appeal in respect of such proceedings; and |
| (b) |
which have not yet been disposed of at the expiry of the period for which he or she was appointed. |
[Section 9(6) inserted by section 1 of Act No. 28 of 2003]
| (a) |
A magistrate appointed in terms of subsection (1) who presided in criminal proceedings in which a plea was recorded in accordance with section 106 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), shall, notwithstanding his or her subsequent vacation of the office of magistrate at any stage, dispose of those proceedings and, for such purpose, shall continue to hold such office in respect of any period during which he or she is necessarily engaged in connection with the disposal of those proceedings— |
| (i) |
in which he or she participated, including an application for leave to appeal in respect of such proceedings; and |
| (ii) |
which were not disposed of when he or she vacated the office of magistrate. |
| (b) |
The proceedings contemplated in paragraph (a) shall be disposed of at the court where the proceedings were commenced, unless all parties to the proceedings agree unconditionally in writing to the proceedings being resumed in another court mentioned in the agreement. |
| (c) |
If the magistrate contemplated in paragraph (a) has subsequently been appointed as a Constitutional Court judge or judge as defined in section 1 of the Judges' Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001)— |
| (i) |
he or she shall only be entitled to the benefits to which such a Constitutional Court judge or judge is entitled as contemplated in the Judges' Remuneration and Conditions of Employment Act, 2001, in respect of any period taken to dispose of the proceedings as contemplated in paragraph (a); and |
| (ii) |
the period taken to dispose of the proceedings as contemplated in paragraph (a) is deemed to be active service for purposes of the Judges' Remuneration and Conditions of Employment Act, 2001. |
| (d) |
If the magistrate contemplated in paragraph (a) has subsequently not been appointed as a Constitutional Court judge or judge as contemplated in paragraph (c), he or she is entitled to such benefits as determined by the Minister from time to time by notice in the Gazette.
|
[Section 9(7)(d) substituted by section 1 of Act No. 8 of 2017 - effective 31 January 2020 as per Proclamation No. R. 5, GG42987, dated 31 January 2020]
| (e) |
A magistrate contemplated in paragraph (a) who is, in the opinion of the Minister— |
| i) |
unfit to continue holding the office of magistrate for purposes of disposing of the proceedings in question; or |
| ii) |
incapacitated as is not able to dispose of the proceedings in question due to such incapacity, |
may be exempted by the Minister from the provisions of this subsection, after consultation with the Chief Justice.
[Section 9(7) inserted by section 1 of Act No. 22 of 2005]
Older Persons Act, 2006
