REPORT IN TERMS OF
SECTION 13(3)(b) OF THE MAGISTRATES ACT, 1993 (ACT 90 OF 1993) BY THE MINISTER
OF; JUSTICE AND CONSTITUTIONAL DEVELOPMENT: PROVISIONAL SUSPENSION - FROM
OFFICE WITH REMUNERATION: MR M F MATHE
1. Mr Mathe, who is an additional
magistrate at the Pinetown ,Magistrates Court, was appointed a magistrate on 29
November 1995 after serving as a prosecutor.;
2. . Mr Mathe appeared before court in Durban on 28 February 2005 after he was
arrested on the same day on a charge of fraud. It is alleged that he stole
monies belonging to a deceased estate during the period between December 2002
and January 2003. The amount involved is R16,200.00. He was remanded on bail of
R8 000.00 to 5 April 2005 and then further remanded to 29 June 2005 for a trial
date to be set.
3. An investigation' has been instituted by the Commission, through two
magistrates-attached to the Secretariat of the Commission; it has established
and confirmed the above facts. The Commission is satisfied, nom these
investigation, that reliable evidence exists indicating that the allegations
against Mr Mathe are of such a serious nature as to make it inappropriate for
him to perform the functions of a magistrate while the allegations are being
investigated.
4. In its letters of 24 March 2005 and 8 April 2005, the Magistrates Commission
requested Mr Mathe to show cause why a decision to provisionally suspend him
from duty, pending the> outcome of an investigation into his fitness to hold
office, should not be taken. On 8 April 2005, he acknowledged receipt of the
Commission's latter letter. He has, to date, failed/refused to respond.
5. At its meeting held on 27 May 2005, the Commission considered the matter and
resolved in terms of section 13(3)(a) of the Act, to advise you to
provisionally suspend Mr Mathe from office; with pay, on the grounds set out
below.
5.1 The Commission holds the view that, without anticipating the outcome of the
investigation into Mr Mathe's fitness to hold the office of magistrate, the
allegations against Mr Mathe are of such a serious nature that they would
justify his removal from office, should he be found guilty of misconduct when
so charged.
5.2 The allegations of fraud bring into suspect the integrity and honesty of
the accused. It would be inappropriate for a person of such a questionable
character to sit on the Bench. The public's confidence in the administration of
justice would be undermined, and the image of the judiciary damaged.
Moreover, he committed offence over a period of time, as opposed to a once-off
aberration.
5.3 Grounds for suspension with pay Mr Mathe has not yet been found guilty. He
appeared in Court for the first time only in February 2005. There is as yet no
evidence that he is contributing towards the delay of the finalisation of his
criminal trial. The Commission has therefore recommended suspension with pay.
The issue of suspension without pay may, however, be considered in future
depending on further developments; for example, whether he is deliberately
frustrating the finalisation of the criminal case against
6. I concur with the view of the Commission that the existing evidence against
Mr Mathe is of such a serious nature that it would justify his removal from
office, should he be found guilty of misconduct when so charged.
7. This Report is hereby submitted for Parliament's consideration in terms of
section 13(3)(c) of the Act.
Signed at PRETORIA on 22 August 2005
MRS B S MABANDLA, MP
MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT
REPORT IN TERMS OF SECTION 13(4A)(b) OF THE MAGISTRATES ACT,1993 WITHHOLDING OF
REMUNERATION, MAGISTRATE I X MASIMINI
1. Purpose
The purpose of this report is to inform Parliament of a determination by
the Magistrates Commission on 19 April 2007 to withhold the remuneration of Mr
Masimini, an additional Magistrate in Queenstown who is under provisional
suspension, and to provide Parliament with the reasons therefore.
2. - Background
2.1 On 17 November 2005, Mr Masimini, an additional Magistrate at Queenstown,
was found guilty on three counts of misconduct in the sense that he had used
foul and/or injudicious language in court. The misconduct tribunal imposed a
sanction which was postponed for a period of 12 months, Le. under the
regulations for Judicial Officers in the Lower Courts, 1994. Furthermore, he
was 'ordered to subject himself to psychological counselling and therapy
sessions.
2.2 Three days after the misconduct inquiry was finalized, Mr Masimini
assaulted a woman at Ezibeleni outside Queenstown -by pulling her with her hair
and hitting her with a glass tumbler on her chin, causing an open wound".
As a result Mr Masimini was charged with assault with the intent to do grievous
bodily harm. He appeared before Court at Ezibeleni on several occasions and was
convicted as charged on 24 November 2006. The matter was postponed to 23 March
2007 for sentence and on that day against postponed until 18 May 2007 for this
purpose.
2.3 On 13 March 2007, The Minister for Justice and Constitutional Development,
provisionally suspended Mr Masimini from Office pending the outcome of the
inquiry into his fitness to hold office. A report in terms of section 13(3){b)
of the. Magistrates Act, 1993 was tabled in Parliament shortly thereafter.
investigation into Mr Masimini's fitness to hold the office of Magistrate,
there
3. Legislative Requirements
In terms of section 13(4A)(a) of the Magistrates Act, 1993, the
remuneration of a magistrate is not affected during the period of his or her
provisional suspension unless the Magistrates Commission determines otherwise.
If the Commission determines that the remuneration of a Magistrate shall be
reduced or withheld, a report regarding the determination and the reason
therefore must be tabled in Parliament by the Minister within 7 days of such
determination, if Parliament is then in session, or, if Parliament is not then
in session, within 7 days after the commencement of its next ensuing session.
4. Discussion
4.1 On 02 January 2007 the Commission, subject to Mr Masimini being
provisionally suspended, informed him in terms of section 13(4A)(b) of the
Magistrates Act, 1993 of the Commission's intention to withhold his
remuneration. He was requested to show cause in writing on or before 15 January
2007, why such a determination should not be considered. In his response dated
15 January 2007 Mr Masimini indicated that he considered it to be unfair and
unjust to withhold remuneration pending the decision of Parliament to
provisionally suspend him from office. On 15 March 2007, after Mr Masimini was
provisionally suspended from office. he was once again afforded the opportunity
to furnish the Commission with representations as to why the Commission should
not determine that his remuneration be withheld. He had until 23 March 2007 to
respond. but to date, has not availed himself of the opportunity.
4.2 After considering the matter at its meeting held on 17-19 April 2007 the
Magistrates Commission determined to withhold Mr Masimini's remuneration with
immediate effect in terms of section 13(4A){a) of the Act. The Commission's
determination was based on the following facts:
(a) The Commission holds the view that without anticipating the outcome of the
investigation into Mr Masimini's fitness to hold the office of Magistrate,
there is reliable evidence against Mr Masimini which also shows that the nature
of the allegations are of such a serious nature that it would justify his
removal from office, should he be found guilty after the inquiry. The
allegation of assault with the intent to do grievous bodily harm on which he has
been found guilty by a court of law and the allegation that he made a false or
incorrect statement when he applied for an appointment to the Regional Court
Bench, by failing to disclose in his application that there was a criminal case
pending against him and that he had appeared as an accused in a court of law,
are of such a serious nature that it would justify his removal from office,
should he be found guilty after the inquiry. All these allegations are of such
a serious nature as to make it inappropriate for him to perform the functions
of a magistrate and still receive remuneration while they are being
investigated.
(b) For the aforegoing reasons, remuneration should be withheld; bearing in
mind also that he has already been convicted as stated above.
5. Conclusion
The report as required by section 13(4A)(b) of the Magistrates Act, 1993 is
submitted herewith for Parliament's consideration.
Given under my hand at PRETORIA on this 8th day of May 2007
MRS 8 5 MABANDLA , MP
MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT