REPORT OF THE SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS ON THE UPLIFTMENT OF THE PROVISIONAL SUSPENSION OF A MAGISTRATE: MR MS MAKAMU, SENIOR MAGISTRATE AT BENONI, DATED 25 OCTOBER 2007:

The Select Committee on Security and Constitutional Affairs, having considered the report on the upliftment of the provisional suspension of a Magistrate, Mr MS Makamu, Senior Magistrate at Benoni, reports as follows:

1.         Background

1.1       The Select Committee noted from the report tabled by the Minister for Justice and Constitutional Development that 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 instalment sale agreement in order to purchase a new motor vehicle.

1.2       The Select Committee noted that 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.

1.3       The Select Committee noted that, 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.

1.4       The Select Committee noted that, 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.

1.5       The Select Committee also noted that, 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.

1.6       The Select Committee also noted that, 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.

1.7       The Select Committee also noted that, 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.

1.8              The Select Committee therefore recommends that the Council agrees with the decision of the Minister to uplift the provisional suspension of a Magistrate, Mr MS Makamu from Benoni, with immediate effect.

Report to be considered.