ATC130522: Report of the Select Committee on Security and Constitutional Development on the suspension of Magistrate CM Dumani, dated 21 May 2013

Report of the Select Committee on Security and Constitutional Development on the suspension of M agistrate CM Dumani , dated 21 May 2013

The Select Committee on Security and Constitutional Development, having considered the report on the suspension of Magistrate CM Dumani , reports as follow s:

1. Background

1.1 The Select Committee heard evidence from the representatives of the Magistrates Commission on 9 October 2009, concerning the matter of the provisional suspension from office of Magistrate Mr C M Dumani .

1.2 Magistrate Dumani was appointed as an Acting Magistrate with effect from 1 November 2008.

1.3 The Magistrates Commission reported that an investigation revealed that four complaints by four female employees, employed at the Graaf Reinet Court House, were filed against Mr Dumani .

1.4 It is alleged during the period December 2008 and January 2009 on different occasions Mr Dumani conducted himself in an unbecoming and embarrassing manner by stroking the cheek of a cleaner and a security officer and tickling the back of the neck of a cleaner. It is alleged that he also stuck his hand between the Clerk of the Court’s breasts. Mr Dumani denied all the allegations against him.

1.5 On 5 March 2009, the Executive Committee of the Magistrates Commission resolved to charge Mr Dumani with four counts of misconduct.

1.6 At a meeting held on 29 and 30 July 2009, the Magistrates Commission considered the matter and resolved to provisionally suspend Mr Dumani from office pending the outcome of an investigation into his fitness to hold office as a Magistrate, as required in terms of section 13(3)(a) of the Magistrates Act, 1993 (Act no 90 of 1993).

2. Provisional suspension of Magistrate CM Dumani

2.1 The Minister, on the advice of the Magistrates Commission, provisionally suspended Mr CM Dumani from office with effect from 16 September 2009.

2.2 The provisional suspension was confirmed by the National Council of Provinces on 5 November 2009.

3. Outcome of misconduct enquiry

3.1 Mr Dumani was found guilty of three of four charges of sexual harassment at his misconduct inquiry and, on 24 May 2010, the presiding officer recommended that he be removed from office. At its meeting on 26 and 27 August 2010, the Commission resolved to support the recommendation that he be removed from office on the grounds of misconduct. On 2 September 2010, the Commission recommended to the Minister that Mr Dumani be removed from office on grounds of misconduct.

3.2 On 13 September 2010, Mr Dumani , applied to the Eastern Cape High Court for it to interdict and restrain the Minister of Justice and Constitutional Development from taking any further action against him, pending the final determination of a review application relating to the disciplinary hearing. The Minister did not oppose the application and the order was granted to Mr Dumani on 21 October 2010.

3.3 However, the review application was dismissed on 12 August 2011. Mr Dumani applied unsuccessfully for leave to appeal against the order. He then petitioned the Judge President of the Supreme Court of Appeal and was granted leave to appeal on 21 February 2012.

4. Consideration of suspension and determination to withhold remuneration of Magistrate CM Dumani

4.1 The Commission appeared before the Committee on 26 October 2011 requesting that the matter of Mr CM Dumani’s suspension be held in abeyance pending the finalisation of the appeal. The Committee agreed to the request.

4.2 The Committee, however, considered the determination to withhold Mr CM Dumani’s remuneration. It agreed with the Minister’s reasoning that Mr CM Dumani , then on provisional suspension and found not fit to hold office, and was being removed from office for that reason, should not continue receiving remuneration.

4.3 The determination to withhold Mr CM Dumani’s remuneration was approved by the National Council of Provinces on 24 November 2011.

5. Outcome of Appeal hearing

5.1 The Supreme Court of Appeal dismissed Mr CM Dumani’s appeal with costs on 30 November 2012.

5.2 The Commission advised the Committee accordingly and, on 19 February 2013, requested that Mr Dumani’s suspension no longer be held in abeyance. It remained of the view that the Minister’s decision to suspend Mr Dumani , taken in September 2011, still stands.

5.3 The Committee is of the view that since Mr Dumani’s appeals were dismissed there was no reason why the National Council of Provinces should not consider the Commission’s report and the Minister’s request that he be removed from office.

6. Recommendation

Having considered the Commission’s report on the suspension from office of Mr CM Dumani and the Minister’s request, the Committee recommends that the National Council of Provinces confirms the suspension from office of magistrate of Mr CM Dumani .

Report to be considered.