Mandating Procedures of Provinces Bill: adoption; Magistrate Suspensions
NCOP Security and Justice
25 October 2007
Meeting Summary
A summary of this committee meeting is not yet available.
Meeting report
SECURITY
AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
25 October 2007
MANDATING PROCEDURES OF PROVINCES BILL: ADOPTION; MAGISTRATE SUSPENSIONS
Chairperson: Kgoshi
L Mokoena (ANC, Limpopo)
Documents handed out:
Upliftment of
provisional suspension of magistrate: Mr MS Makamu, Senior Magistrate at Benoni
Suspension of
magistrate: Mr TVD Matyolo, additional magistrate at Port Elizabeth
Mandating
Procedures of Provinces Bill [B8-2007]
Final mandates:
Eastern Cape legislature
Free State
legislature
Gauteng legislature
KwaZulu-Natal
Parliament
North West
Provincial legislature
Western Cape Parliament
Limpopo Legislature
Northern Cape
legislature
Audio
recording of meeting
SUMMARY
The Magistrates Commission reported on the reinstatement of a suspended
magistrate and the suspension of another. The Committee was divided with some
strongly advocating for his dismissal whilst others called for the rule of
natural law - that they should not dismiss the magistrate before they had heard
his side of the story. It was decided that the Committee request the magistrate
to advance reasons as to why he should not be dismissed from office. If he
failed to respond in seven days, then the Committee would approve the
recommendation that they dismiss him from office.
As all
final mandates had been submitted, the Committee formally approved the adoption
of the Mandating Procedures of Provinces Bill.
MINUTES
Reinstatement of suspended magistrate
Mr Johan Labuschagne, Chief Legal Researcher, Department of Justice,
introduced Mr J Meijer of the
Magistrates Commission. Mr Labuschagne explained that they were before the
Committee to discuss the suspensions of two magistrates, Mr T Matyolo and Mr M
Makamu. He said that Mr Makamu was a senior magistrate for Benoni who had been
suspended provisionally because he had been charged and convicted of fraud. The
specifics were that he had misrepresented to banks that he was receiving a
motor vehicle allowance and on the strength of this, had applied for a car loan.
He was convicted in a Johannesburg court and was given the option of paying R10
000 or going to jail for 10 months. The Magistrates Commission decided to
provisionally suspend him and at the same time withhold his salary pending an
investigation into his fitness to hold office. The investigation was postponed
at the request of Mr Makamu who was waiting for the results of his appeal. The
appeal court overruled the court a quo sentence. As the result of this appeal,
the Magistrates Commission felt that they had no basis to continue an inquiry
and on 27 September his suspension was lifted. The purpose of the report was to
inform the Committee of the removal of the suspension and the reinstating of Mr
Makamu who had started work on 1 October 2007.
Discussion
Mr J Le Roux (DA, Eastern Cape) asked for the court’s reasoning for
their decision.
Mr Meijer replied that the court found that the letter was never given to the
bank for the acquiring of the loan and the loan was not dependent on the letter
so there was no prejudice at all.
Mr S Shiceka (DA, Gauteng) commented that because of the principle of
separation of powers. They, as the legislature, were not supposed to interfere
with the work of the judiciary and as such they had to abide by the decisions
of the courts.
The Chair remarked that the issue was not in contention and invited Mr
Labuschagne to move on to the second issue.
Suspension of magistrate
Mr Labuschagne remarked that the second issue involved an additional
magistrate for the Port Elizabeth magisterial district, Mr TVD Matyolo, who was
frequently absent from duty without permission and was negligent and indolent
in carrying out his duties. Since 5 June 2007, he had not reported for duty.
The Magistrates Commission recommended that he be dismissed. Before
disappearing in June, he produced 21 medical certificates for the period
February till June and on
investigation, they discovered that the 21 certificates were from nine
different medical practitioners.
Mr Meijer added that he had recently talked to the senior magistrate for Port
Elizabeth who confirmed that Mr Matyolo had not reported for work.
Discussion
The Chair asked if all proper procedures had been followed by the Commission
because the Committee did not want a situation where they would have to go
through the same motions just because proper procedure had not taken place.
Mr Meijer replied that indeed all procedures had been followed.
Mr Z Ntuli (ANC, KwaZulu-Natal) asked if they were going to suspend him with or
without pay.
The Chair pointed out that the recommendation by the Commission and the request
of the Justice Minister was that he be removed from office. Mr Labuschagne
added that the only time the Commission suspended remuneration is when there
was a suspension.
Mr Meijer added that the executive committee of the Commission was going to
meet on Monday 29 October to decide whether they were going to withhold his
remuneration or not.
Mr Ntuli asked for the nature of the illness because he was of the opinion that
if they did get hold of Mr Matyolo, they might not need to dismiss him but
relieve him of his duties due to illness - more so if the man was mentally ill.
Mr D Worth, (DA, Free State) added that in an appendix to the report, one of
the doctors stated that Mr Matyolo had been admitted to a mental facility for a
short period but that he had formed the opinion that he was a malingerer.
The Chair commented that the situation would then be worse for Mr Matyolo if he
was suffering from mental illness.
Mr Meijer pointed out that Matyolo had never been sick on a weekend nor on
public holidays but only on court days and his illnesses were computed from
June when he handed in his medical certificates after being absent from the
office for four months. On 28 February he was booked for two days for gastro
until 2 March. On 5 March which was a Monday, he went to another doctor and got
booked off for two days for severe influenza. Then he went back to Dr Khan and
was booked off for flu, back ache and vomiting. On 9 March he went back to Dr
Mbeki and got booked off for chest pains. The very next day he went to another
doctor and got booked off for two days for another influenza. He then went on
to Dr Neil and got booked off again for influenza. On 29 March he got booked
off for epilepsy. On 1 April which was a holiday he was not booked off ill and
there was no problem but on 2 and 3 April he was booked for influenza and
vomiting and the list went on and on. After he had left the 21 certificates,
they had talked to the doctors who informed the Commission that they had indeed
seen him on the respective days but they were unaware that he had been visiting
different doctors at the time.
Mr Le Roux pointed out that he did not think that Mr Matyolo was fit for office
and since Port Elizabeth had more than 280 doctors he felt that he would most
likely take the Commission on a merry go round collecting certificates for
illnesses he professed. He proposed strongly that he be removed.
Mr Shiceka remarked that the Democratic Alliance believes in the rule of law
and natural justice and these entail that at least they hear the other side of
the story and that the man should be given a chance to defend himself before
they make any decision.
Ms F Nyanda (ANC, Mpumalanga) suggested that if they could not find him they
should try to trace him through his family and they should do this before they
made any decision.
The Chair drew the Committee’s attention to the affidavit of the senior
magistrate in Port Elizabeth who swore that Mr Matyolo was not reporting for
duty and had been mostly absent and that the department had done all they could
to contact him but to no avail. To him this spoke volumes of the
irresponsibility of Mr Matyolo. He was a judicial officer who held a public
office who knew very well when he took the job that he needed to report for
duty. As far as he was concerned, the man had no regard for rules and had
refused to follow orders, was negligent and indolent.
Mr Meijer replied that they had tried to contact him. They had visited his
residence three times in an effort to get hold of him but to no avail. An
affidavit stated that on 2 July there was a visit made to his home address in
an attempt to contact him and they found his house neatly maintained with no
accumulated post in the letter box. His neighbours Ms Morris and Ms Smith
commented that he had never complained of being ill nor looked ill. Ms Smith
indicated that Mr Matyolo left home at 6h45 when she was also leaving for work
and returned at about 23h00 and this was a daily pattern. She assumed that he
was going to the magistrates court. During weekends there were always people at
his place.
Mr Meijer added that he felt that the Commission had done all it could to
contact the person save to visit him at night. They were of the view that the
man was a public official who should out of his own initiative and respect for
his office report for duty. There were people with urgent cases that had to be
postponed waiting in vain for a magistrate who did not bother to show up.
Mr Shiceka, Mr Ntuli, Ms Nyanda all expressed their reservations on dismissing
Mr Matyolo without getting the opportunity to hear his side of the story which
they thought was essential. Mr Shiceka said that dismissal was a last resort
measure and Mr Matyolo needed to defend himself before they made any decision.
More so in this case where they did not know where he was. Mr Ntuli added that
it could be that he was mentally ill and that could be the reason for his
actions.
The Chair replied that if Mr Matyolo was indeed mentally unstable it would
definitely make the situation worse and would not aid his case at all. However,
there was the fact that he had already contravened the section that said a
judicial officer could not abscond from work for more than 30 days.
Mr Le Roux added that if his problem was mental illness, the first doctor that
he had gone to see would have suspected as much and would have suggested a
mental facility.
Mr N Mack (ANC, Western Cape) suggested that in a bid to ensuring that all bases
were covered, the Commission might actually look at the option of checking if
his salary was still being withdrawn. If it was, it might aid them in tracing
him by following the withdrawals. If it was not being withdrawn then they
should be worried as something serious might have happened.
Mr Labuschagne replied that he was not sure about the feasibility of that
option. He was not sure that the banks released such sensitive information at
the prompting of a third party as such information was regarded as private and
confidential.
Mr A Moseki (North West) remarked that this was a serious case which to him was
clear cut. Mr Matyolo was absconding from his duties as a public office bearer
without any reasonable excuse. They should relieve the man from his
responsibility as it was obvious that he did not wish to serve the community
now or any time in the future. The Committee should be careful not to look as
if they were not doing anything about such behavior as such behavior undermined
and discredited the government. This was because taxpayer’s money was being
used to remunerate the absentee magistrate and this was unfair. Moreover the
community was not getting value for their money. He moved for his dismissal.
Mr Mack added that in any case there was the route of appeal if Mr Matyolo ever
decided that the decision was unfair and wrong and if he could justify his
absence. He agreed with Mr Moseki, Mr Worth and Mr Le Roux that Mr Matyolo be
dismissed from office.
The Chair informed the Committee that to put the matter to rest they should
reach a middle ground between the view that he should be given sufficient time
to defend himself and the view that he should be summarily dismissed from
office. In order to do this, he proposed that they address a letter to Mr
Matyolo requesting him to furnish reasons why he should not be removed from
office. They were going to give him a grace period of seven days and if he
failed to respond they were going to go with the recommendation of the
Commission and the Minister and remove him from office. He requested that the
letter be drafted and immediately signed and be given back to the Commission to
pass on to Mr Matyolo. He asked the delegates if they had any problem with the
middle ground solution.
Mr Labuschagne and Mr Meijer replied that they did not have any problem with
this procedure. It would add to the fact that they had done all they could to
contact him and get his side of the story. Mr Meijer said that he would deliver
the missive personally.
Mr S Mazosiwe (ANC, Eastern Cape) pointed out that the Committee was
overlooking the significance of the absence for more than 30 days. He was
amazed that Mr Matyolo could not go to work but could go gallivanting looking
for medical practitioners to give him sick certificates. The Committee was
sympathizing with Mr Matyolo but they had to keep their legislative mandate in
perspective. He would have dismissed the magistrate as he was not coming to
work even though the Committee still empathized with the man.
Mr Le Roux pointed out that two senior magistrates had said that he should go.
They had to seriously consider the type of message they were sending out.
The Chair ruled that they were going to write a letter to Mr Matyolo giving him
seven days to respond. If he failed to do so, then they would support his
dismissal.
Mandating Procedures of Provinces Bill [B8-2007]: voting
All the mandates had been received and all provinces were in support of the
Bill. The Committee approved the adoption of the amended bill.
The meeting was adjourned.
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