ATC111116: Report Withholding of remuneration for Mr T M Masinga, Magistrate at Emlazi

NCOP Security and Justice

Report of the Select Committee on Security and Constitutional Development on the withholding of remuneration for Mr T M Masinga, Magistrate at Emlazi, dated 16 November 2011:

 

Introduction

 

The Select Committee on Security and Constitutional Development, having considered the report on the withholding of remuneration of a magistrate, Mr T M Masinga, a magistrate at Emlazi, tabled by the Minister for Justice and Constitutional Development, in terms of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:

 

Background

 

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). It is 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.                   At its meeting held on 26 November 2009, the Magistrates Commission considered the matter and resolved to recommend that Mr Masinga be provisionally suspended from office in terms of section 13(3) (a) of the Act.

 

3.                   On the 3 February 2010, the Minister of Justice and Constitutional Development, on the advice of the Magistrates Commission, provisionally suspended Mr Masinga from office.

 

4.                   On 8 February 2010, the Commission charged Mr Masinga with three counts of misconduct. The Commission was informed, in writing, on 2 March 2010, that NEHAWU would act on Mr Masinga’s behalf. The misconduct inquiry was set down for 26 August 2010. NEHAWU, acting on behalf of Mr Masinga, requested a postponement to appoint a legal representative. They were also instructed to argue that the disciplinary hearing should not proceed until the criminal case against Mr Masinga had been finalised. The inquiry was postponed to 21 October 2010, but the representative of NEHAWU was absent on the day. The Presiding Officer then postponed the proceedings to 4 February 2011 for Mr Masinga to obtain finality in respect of legal representation. Neither Mr Masinga, nor the representative of NEHAWU, presented themselves on 4 February 2011. The Presiding Officer postponed the inquiry to 28 March 2011 and requested the Commission to serve a fresh notice of hearing on Mr Masinga. The notice was served on 24 February 2011. The inquiry proceeded on 28 March 2011. Mr Masinga requested another postponement for NEHAWU to instruct an attorney. On 24 May 2011, Mr Masinga was represented by an attorney. Various points for clarification were raised and were to be addressed on 22 August 2011.

 

5.                   Mr Masinga’s provisional suspension was approved by the National Council of Provinces on 4 June 2010 pending the outcome of an inquiry into his fitness to hold office.

 

6.                   On 23 May 2011, Mr Masinga was convicted on a charge of attempted murder by the Regional Court, Durban.  Sentencing would take place on 4 October 2011.

 

 

Recommendation to withhold remuneration of provisionally suspended magistrate

 

1.                   Mr Masinga is currently on suspension since 3 February 2010 with remuneration.

 

2.                   Mr Masinga intends taking his criminal conviction on appeal or review once sentence is imposed.

 

3.                   The Magistrates Commission requested Mr Masinga to show cause why the Commission should not determine to withhold his remuneration.

 

4.                   The Magistrates Commission determined that the argument submitted by Mr Masinga’s attorneys did not take the matter further and did not address why the Commission should not withhold remuneration.

 

5.                   The Minister concurred with the recommendation to withhold remuneration, in terms of section 13(4A)(a) of the Magistrates Act, as there was no reason why a magistrate who is on provisional suspension, and who has been convicted of a serious offence by a Court of Law, should continue to receive remuneration during the period he is provisionally suspended from office pending the outcome of the misconduct enquiry against him.

 

 

Conclusion

The Select Committee on Security and Constitutional Development, having considered the report on the withholding of remuneration of magistrate, Mr. T M Masinga, a magistrate at Emlazi, reports that it concurs with the Minister of Justice and Constitutional Development and recommends that remuneration be withheld from Mr T M Masinga.

 

 

Report to be considered.