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