Mandating Procedures of Provinces Bill: adoption; Magistrate Suspensions

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.