UPLIFTMENT OF THE PROVISIONAL SUSPENSION OF A
MAGISTRATE: MR M S MAKAMU, SENIOR MAGISTRATE AT -BENONI
1. Purpose
The purpose of the report is to inform Parliament of a decision taken by the
Minister for Justice and Constitutional Development to uplift the provisional
suspension of a Magistrate, Mr M S Makamu from Benoni, with immediate effect.
2. Background
2.1 The Minister for Justice and Constitutional Development, on 23 November 2005,provisionally suspended
Mr M S Makamu, a Senior Magistrate at Benoni, from office. It was done in terms
of section 13(3)(a) of the Magistrates Act, 1993, (Act No 90 of 1993) on the
advice of the Magistrates Commission. A report to this effect was subsequently
tabled in Parliament in terms of section 13(3)(b) of the Act. The National
Assembly, on 21 June 2006, and the National Council of Provinces, shortly
thereafter; confirmed Mr Makamu's provisional suspension. Mr Makamu's
provisional suspension was based on the following:
Mr Makamu was convicted by the Johannesburg Regional Court of fraud and, on 21
June 2005, sentenced to a fine of R10 000.00 or, in default of payment, to a
period of six months imprisonment, all of which were suspended for a period of
four years on certain conditions. The conviction relates to an incident where
he allegedly convinced the administration Officer at the Benoni Magistrate's
Court to sign an official letter in which he stated that he (Mr Makamu) was
entitled to an official motor vehicle allowance to the amount of R80 973.00 per
annum, well knowing that in truth and in fact he at the time did not qualify to
receive such an allowance. Mr Makamu then presented the said letter to Bankfin
where he applied for an installment sale agreement in order to purchase a new
motor vehicle.
2.2 Furthermore, the Magistrates Commission, on 31 March 2006 and in terms of
section 13(4A)(a) of the Magistrates Act, 1993 determined to withhold Mr
Makamu's remuneration. A report to this effect was tabled in Parliament on 7
April 2006. The National Assembly confirmed the Commission's determination on
21 June 2006 and the National Council of Provinces shortly thereafter.
3. Discussion
3.1 After having been provisionally suspended from Office, the Magistrates
Commission commenced with its investigation into Mr Makamu's fitness to hold
Office as a Magistrate. After conclusion of the investigation, the Commission
decided to charge Mr Makamu of misconduct and served a written notice to this
effect on him on 25 July 2005. However, the inquiry into his fitness to hold
office was, at his own request, postponed sine die on 13 January 2006, pending
the outcome of his appeal against his conviction in the Regional Court.
3.2 On 15 June 2007 the appeal against Mr Makamu's conviction and sentence was
finally heard and upheld by the High Court in Johannesburg. Accordingly, both
his conviction and his sentence were set aside. According to the Commission, it
after having studied the record of the proceedings is of the view that it would
not, on a balance of probabilities, be able to successfully prove the charge of
misconduct which was based on the incident which formed the basis of the
criminal prosecution and which led to his provisional suspension, against Mr
Makamu.
3.3 Accordingly, the Commission has decided not to proceed with its inquiry
against Mr Makamu. Since the misconduct inquiry formed the basis of his
provisional suspension, his provisional suspension could not be sustained and
accordingly, his provisional suspension was uplifted with immediate effect.
3.4 Since the withholding of Mr Makamu's remuneration was based on his
provisional suspension, the determination to withhold his salary automatically
fell away at-the time when his provisional suspension was uplifted.
4. Conclusion
Since the basis on which Mr Makamu was provisionally suspended fell away
there was no reason to uphold his provisional suspension. Accordingly, his
provisional suspension was uplifted with immediate effect.
Signed at on this
day of ..
TWO Thousand and Seven.
Ms B S MABANDLA, MP
MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT