Report of the Select Committee on Security and Constitutional Development on the Provisional Suspension from Office of Magistrate T C Oliphant, dated 26 August 2009

Introduction

The Select Committee on Security and Constitutional Affairs, having considered the report on the provisional suspension from office of Magistrate T C Oliphant tabled by the Minister for Justice and Constitutional Development in terms of section 13(4)(b) of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:

Background

1. The Select Committee noted from the report tabled by the Minister for Justice and Constitutional Development that the Magistrates Commission resolved on 04 March 2009 to recommend that Ms T C Oliphant, an additional magistrate at Wynberg, be removed from office in terms of section 13(4)(a) of the Magistrates Act, 1993.

2. The Select Committee noted that Ms Oliphant was employed by the Department of Justice and Constitutional Development since 01 February 1994 and was appointed as Magistrate on 06 May 2002. Ms Oliphant was subsequently absent from office from 25 April 2008 to 10 November 2008.

3. A preliminary investigation was conducted in terms of Regulation 26 (1) of the regulations for Judicial Officers in Lower Courts, 1994, into allegations of Ms Oliphant’s absenteeism from office without leave or valid cause.

4. The Ethics Committee of the Magistrates Commission on 25 September 2008 considered the preliminary investigation report and resolved that Ms Oliphant not be charged with misconduct, but to deal with the matter in terms of regulation 26(4) (b) of the said regulations in that she be requested to appear before the Ethics Committee to be reprimanded.

5. The Select Committee notes that Ms Oliphant was absent from office without leave from 25 April 2008 and did not inform her immediate superiors of her whereabouts. Contact with Ms Oliphant was attempted through various means and her Judicial Head was eventually able to trace her and serve a notice on her personally on 22 October 2008 for her to appear before the Ethics Committee.

6. Ms Oliphant subsequently appeared before the Ethics Committee at Pretoria on 06 November 2008. She indicated that she had been suffering from a major depressive disorder and that she was admitted to a Psychiatric Clinic for the period 02 – 24 April 2008. A medical certificate for this period was produced. No application for leave or medical certificates was produced for the period 25 April – 05 November 2008.

7. Ms Oliphant indicated that she would resume her duties on 10 November 2008. The Ethics Committee requested her to obtain a written report from her medical practitioner confirming that she had recuperated to such an extent that she was able to resume her duties as a magistrate. She undertook to provide such a report on 20 November 2008.

8. Ms Oliphant resumed duties on 10 November 2008 and was present until 14 November 2008. She was then absent from office from 17 November 2008 and again failed in her responsibility to report her absence to her Judicial Head.

9. Ms Oliphant failed to attend a meeting scheduled for 20 November 2008 and to produce a report from her medical practitioner on her fitness for duty. She again did not communicate with her Judicial Head of Office in this regard and all attempts to contact her were unsuccessful.

10. On 05 December 2008 Ms Oliphant was informed in writing that her conduct amounted to serious misconduct. She was further advised that should she fail to report for duty or fail to inform her Judicial head of her whereabouts by 17 December 2008, she would be deemed to have absconded and that she would have made herself guilty of misconduct. A letter was served on her but Ms Oliphant was not at home at the time and the letter was left on a chair in the living room through an open window.

11. Two Judicial Quality Assurance Officers, in a final attempt, traced Ms Oliphant to her residence in Mitchells Plain on 14 January 2009. The Judicial Officers met with Ms Oliphant and requested an explanation for her absence from office. She did not give an explanation. She was advised to contact her Judicial Head and report for duty. Ms Oliphant failed to do so.

Legal requirements

1. If a magistrate is absent without leave or valid reason from his/her office or duty for a period of 30 days or longer the following applies:

a. The Commission must in terms of regulation 34(1) of the Regulations for Judicial officers in Lower Courts, 1994, be informed without delay; and

b. It shall be deemed that the magistrate has absconded and made himself/herself guilty of misconduct.

2. In terms of section 13(4) (a) of the Magistrates Act, 1993 (Act no 90 of 1993) the Minister for Justice and Constitutional Development, if the Magistrates Commission recommend that a Magistrate be removed from office, on inter alia, the basis of misconduct, must suspend that magistrate from office or if the Magistrate is at that stage provisionally suspended in terms of the Act, confirm the suspension.

3. The report in which such suspension and the reasons therefore are made known, must be tabled in Parliament by the Minister within 14 days of that suspension if parliament is then in session or, if parliament is not then in session, within 14 days after the commencement of the next ensuing session.

4. In terms of section 13(3)(c) of the Magistrates Act, 1993, Parliament must, as soon as is reasonably possible, pass a resolution as to whether or not the provisional suspension of a magistrate is confirmed.

Committee recommendation:

1. The Select Committee recommends that the Magistrates Commission endeavours to contact Ms Oliphant for one last time, in writing, to request that she produce her medical records for review by the Ethics Committee of the Magistrates Commission.

2. The Select Committee further recommends that Ms Oliphant be given two weeks, from the date of receipt of the letter, to comply with the above-mentioned request to produce her medical records.

3. The Select Committee expects a report from the Magistrates Commission on Tuesday, 15 September 2009, on the basis of which the Committee would finalise its recommendation to the National Council of Provinces.