PROGRESS
REPORT DATED 24 OCTOBER 2006 TO PARLIAMENT I.T.O. SECTION 13(3)(1) OF THE MAGISTRATES ACT, 1993: INQUIRY INTO ALLEGATIONS
OF MISCONDUCT: MAKAMU M S
1. Introduction
The Magistrates Commission must in terms of section ] 3(3)(t) of the
Magistrates Act, No. 90 of 1993 (Act) cause a report on the progress made in
respect of inquiries against magistrates who have been provisionally suspended
form office to be submitted to Parliament every three months.
Section 13(3)(e) of the Act provides that the provisional suspension of a
magistrate in terms of paragraph (a) lapses after 60 days from the date of
suspension, unless the Commission, within that period, commences its inquiry
into the allegation in question by causing a written notice containing the
allegation concerned to be served on the magistrate.
2. Discussion
In terms of section 13(3)(a) of the Act, the Minister,
acting on the advice of the Commission, provisionally suspended Mr Makamu from
office on 23 November 2005. Mr Makamu was convicted of fraud. He was charged
for inducing an Administration Officer at the Benoni Magistrates Court to sign
an official letter stating that he was entitled to an official motor vehicle
allowance which letter was presented to Bankfin for the purpose of an
instalment sale agreement. The Regional Court imposed a suspended sentence. An
application for leave to appeal has been filed and was to be heard on 2
February 2006.
An inquiry into Mr. Makamu' s conduct has been
initiated in terms of section 13(3)( e) of the Act. The Commission caused a
written notice containing the allegations against Mr Makamu to be served on him
on 25 July 2005. The inquiry commenced therefore within the framework of the
provisions of the Act. In fact it commenced even before his suspension by the
Minister took effect.
On 13 January 2006 the inquiry into his fitness to hold office was, at Mr
Makamu's request, postponed sine die in his absence to await the outcome of his
application for condonation for the late filing of an appeal against his
conviction of fraud by the Johannesburg Regional Court. Although such an
application was apparently filed at the Clerk of the Court's office during
August 2005, the matter was never placed on the roll. The Secretariat of the
Commission intervened and had the matter placed on the roll for consideration
on 2 February 2006. Neither Mr Makamu nor his attorney was in attendance. The
matter was therefore struck off the roll but once again, with the assistance of
the Secretariat, replaced on the roll for 16 February 2006. The Court on 16
February 2006 refused his application for condonation for the late filing of
his appeal. Mr Makamu petitioned to the High Court for condonation for leave to
appeal which application was granted on 20 April 2006. He subsequently filed an
appeal against his conviction and sentence.
Mr Makamu's attorney of record was immediately requested to furnish the
Commission with a date(s) for the investigation into his fitness to hold office
to continue. A further reminder was sent on 17 March 2006 and a date for the
enquiry to continue was set on 21 April 2006. The presiding officer, on the
request of the defence, postponed the inquiry sine die pending the
outcome of the matter on appeal.
On Saturday 15 April 2006 Mr Makamu filed an application in the High Court for
an order to set aside the Minister's decision to provisionally suspend him from
office as well as the Commission's determination to withhold his remuneration
with effect from
31 March 2006. The application was opposed. The matter is enrolled for 21
February 2007 for argument. The High Court, however, ruled that Mr Makamu in
the meantime be remunerated.