ATC141028: Report of the Portfolio Committee on Justice and Correctional Services on the Suspension of Magistrate TM Masinga, dated 28 October 2014:

Report of the Portfolio Committee on Justice and Correctional Services on the Suspension of M agistrate TM Masinga , dated 28 October 2014:

The Portfolio Committee on Justice and Correctional Services, having considered the report on the suspension of Magistrate TM Masinga, an additional magistrate at Umlazi, reports as follow s:

1. On 19 March 2009, Mr Masinga appeared in the Durban Magistrate’s Court on a charge of contravening the Domestic Violence Act, No. 116 of 1998. It was alleged that he assaulted his wife with the blunt part of an axe, that he kicked her, hit her with open hands and threatened to kill her. It was also alleged that he also assaulted his daughters.

2. The case was transferred to the Regional Court where Mr Masinga appeared on additional charges of attempted murder and two counts of assault. The Regional Court convicted Mr Masinga on a charge of attempted murder on 23 May 2011 and he was later sentenced to ten (10) years imprisonment. He appealed against his conviction and sentence. 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 was to file review proceedings by no later than 20 April 2013.

3. On 13 June 2014, the Commission was advised that the review proceedings were, on the request of Mr Masinga’s attorney, removed from the roll on 22 May 2014 as he had as yet not filed a Replying Affidavit. 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.

4. Mr Masinga was charged with three counts of misconduct and found guilty on two counts. The Presiding Officer recommended that Mr Masinga be removed from office as contemplated in section 13(4) of the Magistrates Act, 90 of 1993.

5. At its meeting held on 11 July 2014, the Magistrates Commission resolved to recommend to the Minister that the recommendation of the Presiding Officer be accepted and that Mr Masinga be removed from office on the grounds of misconduct.

6. The Commission is of the view that Mr Masinga's conduct is so serious that it justifies his removal from office. Furthermore Mr Masinga's apparent failure to prosecute his appeal/review against his criminal conviction of attempted murder might result in the office of the Director of Public Prosecutions launching an application for Mr Masinga's bail to be cancelled. This would result in him being incarcerated. His conduct renders him unfit to hold the office of Magistrate any longer. Mr Masinga is currently provisionally suspended from office and receives no remuneration.

7. The Committee feels that the image of our courts and presiding officers must be protected. It is not desirable for a presiding officer who is facing criminal charges or found guilty of a crime to continue to sit on the Bench.

8. In the Fourth Parliament, the Portfolio Committee on Justice and Constitutional Development expressed concerns about delays in the conclusion of disciplinary hearings caused by pending protracted criminal appeals. It should be noted that the Commission’s decision to recommend his removal from Office is based on the outcomes of the disciplinary hearing and not the criminal proceedings. The Commission could still recommend his removal even if Mr Masinga had been cleared in the criminal proceedings. This is due to the fact that the standard of proof required in the two instances is different.

9. The Committee is aware that nothing prevents Mr Masinga from taking the decisions of the disciplinary hearing on review. Mr Masinga has not done so and both the Commission and the Committee cannot wait any longer since any delay has a negative effect on the image of the judiciary.

Recommendation

· Having considered the Commission’s report on the suspension from office of Mr TM Masinga and the Minister’s request, the Committee recommends that the National Assembly confirms the suspension.

Report to be considered.