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.