REPORT

SUSPENSION OF A MAGISTRATE: MR TV D MATYOLO, ADDITIONAL MAGISTRATE AT PORT ELIZABETH

1. Purpose

The purpose of the memorandum is to inform Parliament of the suspension of Mr T V D Matyolo, an additional Magistrate at Port Elizabeth, pending consideration by Parliament of a recommendation by the Magistrates Commission for his removal from office as a Magistrate in terms of section 13(4)(a) of the Magistrates Act, 1993 (Act No 90 of 1993).

2. Background

2.1 Mr Matyolo was appointed as a Magistrate on 1 January 1996. He currently holds the position of additional Magistrate in Port Elizabeth. On 5 February 2007 the Magistrates Commission appointed a Senior Magistrate to conduct an investigation into Mr Matyolo's capacity to carry out his duties of office efficiently. It was alleged that he has refused to execute lawful orders, that he frequently absents himself from duty without a valid reason and that he was negligent or indolent in the carrying out of his duties.

2.2 The investigation could however not commence due to the fact that Mr Matyolo was absent from office since 28 February 2007. The Senior Magistrate in control of the civil courts in Port. Elizabeth reported that Mr Mat yolo did not report for duty between 28 February 2007 and 5 June 2007. Various attempts to contact him either telephonically or otherwise during that period were unsuccessful. He did not even respond to correspondence. Even personal visits to his place of residence did not bring any success. According to the Commission Mr Mat yolo is single and has no children.

2.3 The Commission, during its meeting in May 2007, recommended that. Mr Matyolo be removed from office on the basis of misconduct. The Commission also recommended that I suspend Mr Matyolo from office pending consideration by Parliament of the recommendation for his removal from office. However, before I could suspend Mr Matyolo and submit a report in that regard to Parliament, Mr Matyolo, on 5 June 2007, "reported" at the Magistrate's Court in Port Elizabeth, and provided an administrative staff member, Mrs Herselman, with'21 medical certificates issued by 9 different medical practitioners covering the area between 28 February 2007 and 1 June 2007. Since he handed in medical certificates, there was no basis for me, at that stage, to recommend that Parliament remove him from office and to suspend him in the meantime without further investigation. Accordingly, the matter was kept in abeyance pending investigation by the Commission.

2.4 After Mr Mat yolo left the office on 5 June 2007, he has not again reported for duty. No leave forms have been submitted by him and no contact, either telephonically or in writing, has been made with his Judicial Head or with any of the senior judicial officers at the office. This state of affairs was again reported to the Commission and confirmed on 23 August 2007 by the Judicial Head of the Administrative Region concerned, the Chief Magistrate of Port Elizabeth.

3. Legal Requirements and Authority

3.1 If a Magistrate is absent without leave or a valid reason from his/her office or duty for a period of 30 days or longer (as in the case of Mr Matyolo)

(c) the Commission must, in terms of regulation 34(1) of the Regulations for Judicial Officers in the Lower Courts, 1994, be informed without delay; and

(d) it shall be deemed that the Magistrate has absconded and made himself/herself guilty of misconduct.

3.2 In terms of section 13(4)(a) of the Magistrates Act, 1993 (Act No 90 of 1993), the Minister, if the Magistrates Commission would recommend that a Magistrate be removed from office on inter alia the basis of misconduct, must suspend that Magistrate from office or if the Magistrate is at that stage provisionally suspended in terms of the Act, confirm the suspension.

3.3 The report in which such suspension and the reasons therefore are made known, must be tabled in Parliament by the Minister within 14 days of that suspension, if Parliament is then in session or, if Parliament is not then in session, within 14 days after the commencement of the next ensuing session.

3.4 Parliament must then, as soon as it is reasonably possible, pass a resolution as to whether or not the restoration to his/her office of the Magistrate so suspended is recommended.

3.5 After the resolution has been passed by Parliament as contemplated in paragraph 3.4, the Minister shall restore the Magistrate concerned to his/her office or remove him/her from office, as the case may be.

4. Discussion

4.1 For all practical purposes, Mr Matyolo has been absent from work since February 2007.

Although he has submitted medical certificates covering the period 28 February 2007 to 1 June 2007, he has again been absent from work ever since - a period of almost four months. In terms of regulation 34(1) of the Regulations for Judicial Officers in the Lower Courts, 1994, he is therefore deemed to have absconded and, as such,' he made himself guilty of misconduct. It is therefore unnecessary to conduct an inquiry into his fitness to hold office since he is already deemed to have misconducted himself and as such he is guilty of misconduct.

4.2 Having considered the matter, the Commission at its meeting held on 23 August 2007, resolved to recommend that Mr Matyolo be removed from office on the basis of misconduct in terms of section 13(4)(a)(i) of the Magistrates Act, 1993.

4.3 The recommendation of the Commission for Mr Matyolo's removal from office is based on the following:

The Commission is of the view that it is not justified for a Magistrate whose whereabouts are unknown for a period of more than 30 days to hold the office of Magistrate any longer. Mr'Matyolo's absence from office, 3 months without leave or valid cause, is detrimental to the 'efficient running of the courts at Port Elizabeth and to the Administration of Justice. He has many part-heard civil matters outstanding. It is Mr Matyolo's responsibility to report for duty or at least to inform his Judicial Head of his whereabouts. He failed to do this and in so doing, brings the good name, dignity and esteem of the office of Magistrate and the Administration of Justice into disrepute. Furthermore, his conduct is in terms of regulation 34 an abscondment, thereby constituting gross misconduct.

4.4 As indicated above, if the Magistrates Commission has recommended that a Magistrate be removed from office on the basis of misconduct, the Minister must suspend that Magistrate from office. Furthermore, the Minister must table a report in Parliament making known the suspension and the reasons therefore.

4.5 On this basis I have suspended Mr Matyolo from office.

5. Conclusion

The report as required by section 13(4 )(b) of the Magistrates Act, 1993 is submitted herewith for Parliament's consideration.

Given under my Hand at . ... ... .. . .. .... on this …….of..::……(TWO Thousand and Seven.

MS B S MABANDLA, MP

MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT