The following report replaces the
Report of the Select Committee on Security and Justice which was published in
the Announcements, Tablings and Committee Reports of 16 October 2014, on page
1332.
1.
Introduction
1.1. The
Select Committee on Security and Justice, having considered evidence relating
to the report on the suspension from office of MagistrateMr M T Masinga, an
additional Magistrate at Emlazi,KwaZulu-Natal, tabled
by the Minister for Justice and Correctional Services in terms of section 13(3)(b)
of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:
1.2. The Committee heard
evidence from representatives of the Magistrates Commission concerning the
matter of the provisional suspension from office of MagistrateMr
M T Masinga on 17 September 2014.
2.
Background
2.1. The
Chief Magistrate, Durban, in a letter dated 2 April 2009 reported that Mr Masinga on 19 March 2009 appeared in the Durban Magistrates
Court on a charge of contravening section 17 (a), read with section 7 of the
Domestic Violence Act (Act No 116 of 1998). The charge alleged that he
assaulted his wife with a blunt axe, that he kicked her, hit her with open
hands and threatened to kill her. He also assaulted his daughters.
2.2. The
court remanded the criminal proceedings to 14 April 2009. The Court granted Mr Masinga bail of R1000.00. The criminal case was then transferred
to the Regional Court Durban, where Mr Masinga
appeared on additional charges of attempted murder and two counts of assault.
2.3. On
14 July 2009, the Ethics Committee of the Magistrates Commission informed Mr Masinga in writing that the Commission was considering recommendinghis provisional suspension from office, pending
the outcome of an investigation into his fitness to hold office. The
Magistrates Commission requested he show cause, in writing, why they should not
take such a decision.
2.4. At
its meeting held on 26 November 2009, the Commission considered the matter and recommendedMr Masinga’s provisionalsuspension from office in terms of section 13(3)
(a) of the Magistrates Act, Act No 90 of 1993 (the Act).
2.5.
On
8 February 2010, the Commission charged Mr Masinga
with three counts of misconduct. The
Commission served a notice on Mr Masinga in terms of
section 13(3)(e) of the Act containing the allegations
against him.
2.6.
The National Council of Provinces on 4 June 2010confirmed the
provisional suspension of Mr Masinga from the office
of Magistrate pending the outcome of the investigation and misconduct inquiry.
2.7.
The
misconduct inquiry commenced on 26 August 2010. Various requests for
postponement by the defence caused a serious delay in the finalization of the
misconduct inquiry against Mr Masinga. Mr Masinga raised various points in limine.
2.8.
The
Regional Court Durban convicted Mr Masinga on a
charge of attempted murder on 23 May 2011.
2.9.
The National Council of Provinces on 24 November 2011confirmed the withholding
of remuneration of Mr Masinga.
2.10.
On
16 January 2012, the Regional Court Durban sentenced Mr Masinga
to ten years imprisonment. Mr Masinga appealed
against his conviction and sentence.
2.11.
The
Pietermaritzburg High Court on 28 March 2013 ordered the appeal to be adjourned
sine die and granted Mr Masinga leave to bring the matter under review. He had to
file review proceedings by no later than 20 April 2013.
2.12.
On 8 November 2013, the Commission placed the evidence
on record before the Presiding Officer. The Presiding Officer postponed the
hearing to 12 December 2013 for both parties to address him on the merits.
2.13.
The Presiding Officer on 28 February 2014 found Mr Masinga guilty on two of the three charges of misconduct.
On 22 April 2014 the Presiding Officer recommended in terms of regulation 26(17)(b)
of the Regulations for Judicial Officers in the Lower Courts, 1994 (the
Regulations) that Mr Masinga
be removed from office as contemplated
in section 13(4) of the Act.
2.14.
The
Registrar of the High Court advised the Commission on 13 June 2014 that the
review proceedings were, at the request of Mr Masinga’s
attorney, removed from the roll on 22 May 2014, as he had not filed a Replying
Affidavit.
2.15.
The
Director of Public Prosecutions, KwaZulu-Natal, on 22 May 2014 filed a Notice
of Bar in the event of Mr Masinga not filing his
Replying Affidavit by 9 June 2014. The
Commission awaits an update on this matter.
2.16.
Mr Masinga was, in terms of
regulation 26(20) of the Regulations, given the opportunity to lodge written
representations with the Commission within 21 working days after the findings
of the Presiding Officer. Although out of time, Mr Masinga
lodged his representations with the Commission in terms of regulation 26(20) of
the Regulations on 2 July 2014.
2.17.
Having considered Mr Masinga's
representations in terms of regulation 26(21) of the Regulations, the Presiding
Officer indicated that he had no additional reasons for his recommendation to
submit to the Commission.
2.18.
At its meeting held on 11 July 2014, the Magistrates
Commission considered the documents as required by the Regulations for Judicial
Officers in the Lower Courts and recommended to the Minister that Mr Masinga be suspended and removed from office on the grounds
of misconduct in terms of section 13(4)(a)(i) of the Act.
2.19.
The Commission is of the view that Mr Masinga's conduct was so serious that it justified his
removal from office. The Commission
noted Mr Masinga's apparent failure to prosecute his
appeal against his criminal conviction of attempted murder might result in the
office of the Director of Public Prosecutions applying to cancel Mr Masinga's bail. This
would result in his incarceration.
2.20.
Mr Masingais currently
provisionally suspended from office without remuneration.
3.
Committee recommendation
The Select Committee on Security
and Justice having considered the Commission’s report on the suspension from
office of Magistrate M T Masinga, and the Minister’s
request, recommends
that the National Council of Provinces not restore Mr Masinga
to his office of Magistrate.
Report
to be considered.