ATC091110: Report on Removal from Office of Magistrate TC Oliphant
Report of the Portfolio Committee on Justice and Constitutional Development on the removal from office of Magistrate TC Oliphant, dated 10 November 2009:
The Portfolio Committee on Justice and Constitutional Development, having considered the report on the removal from office of Magistrate TC Oliphant, tabled by the Minister for Justice and Constitutional Development in terms of section 13(4)(a) of the Magistrates Act, 1993 (Act 90 of 1993), reports as follows:
1. The Magistrates Commission resolved on 4 March 2009 to recommend that Ms Oliphant be removed from office on the ground of misconduct.
2. In terms of Regulation 34(1) of the Regulations of Judicial Officers in the Lower Courts, 1994, if a Magistrate is absent from office without leave or a valid reason for more than 30 days, he or she is deemed to have absconded and is guilty of misconduct.
3. In terms of section 13(4)(a) the Minister must suspend a Magistrate if the Magistrates Commission recommends his or her removal on the ground of misconduct. On 10 March 2009, the Minister of Justice and Constitutional Development tabled a report on Ms Oliphant’s suspension from Office. A report on the withholding of remuneration of Ms Oliphant was tabled on 24 March 2009 in terms of section 13(4A)(b) of the Magistrates Act, 1993.
4. In terms of section 13(4)(c) of the Magistrates Act, 1993, Parliament must, as soon as is reasonably possible, resolve whether to recommend that a Magistrate, who is so suspended, be restored to office or not.
5. Ms Oliphant was alleged to have been absent from office without leave (1) from 25 April 2008 to 10 November 2008; and (2) from 17 November 2008 to date.
6. First period of absence (25 April 2008 – 10 November 2008)
a. A preliminary investigation was conducted into Ms Oliphant’s absenteeism and her alleged conduct on 7 February 2008 towards Mr Nyembezi, a prosecutor at the court over which she presided.
b. On 25 September 2008, the Ethics Committee for the Magistrates Commission considered the preliminary investigation report. It resolved that Ms Oliphant not be charged with misconduct, but that she be asked to appear before it.
c. At the meeting of the Ethics Committee on 6 November 2008, Ms Oliphant indicated that she would resume her duties at Wynberg on Monday 10 November 2008:
i.She told the Committee that she had been suffering from major depressive disorder and that she had been admitted to a Psychiatric Clinic from 2 to 24 April 2008. She produced a medical certificate for this period (2 - 24 April 2008) but did not apply for leave or produce medical certificates supporting her absenteeism from office for the period 25 April to 5 November 2008.
ii.Ms Oliphant also informed the Committee that she felt that she was fit to resume the functions of a magistrate. The Committee asked that she 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.
iii.A meeting was scheduled with the relevant Judicial Head, Ms Tongeni, at Wynberg on 20 November 2008. Ms Oliphant undertook to provide Ms Tongeni with a written report from her medical practitioner, as well submit the outstanding leave forms and medical certificates.
iv.Ms Oliphant failed to attend the meeting and failed/refused to submit the outstanding leave forms. She did not communicate with her Judicial Head of Office in this regard at all and attempts to contact her were not successful.
7. Second period of absence from office (17 November 2008 to date)
a. On 4 December 2008, the Ethics Committee was informed that Ms Oliphant had resumed duties at Wynberg on 10 November 2008. She remained present until 14 November 2008, but from 17 November 2008 was once more absent from office.
b. On 5 December 2008, Ms Oliphant was informed in writing that her conduct amounted to serious misconduct. She was advised that should she fail to report for duty and or fail to inform her Judicial Head of Office of her whereabouts by 17 December 2008, she would be deemed to have absconded and that she would have made herself guilty of misconduct. She was also advised that this might lead to the Commission recommending to Parliament that she be removed from office in terms of section 13(4)(a)(i) of the Magistrates Act, 1993 (Act 90 of 1993).
c. An attempt was made to serve the letter on her personally, but she was not present. The letter was left on a chair in the living room through an open window.
d. On 14 January 2009, two Judicial Quality Assurance Officers, both Magistrates from the Pretoria Office, made a final effort to trace Ms Oliphant. They visited her place of residence in Mitchells Plain. The windows were closed and the curtains drawn. They came back later in the day, where they found MsOliphant and a friend at home. During a 20 minute conversation with her, she was asked 3 times why she was not at the office. She did not give any explanation. She was also urged to contact her Judicial Head, the Chief Magistrate, Wynberg, and to report for duty without delay. To date, she has failed to do so.
8. On 26 August 2009, the Magistrate’s Commission briefed the Portfolio Committee on the events that caused it to recommend that Ms Oliphant be removed from office.
9. At the meeting, the Committee requested that the Commission give Ms Oliphant one more opportunity to submit her medical records. The Committee asked the Commission to try once more to contact Ms Oliphant, specifically asking her if she wishes to submit any written representations regarding her medical situation since April 2008, and to submit any medical reports that might substantiate why she had been prevented from resuming her official duties. It asked that Ms Oliphant be given 2 weeks to respond, and that the Commission inform the Committee of her response, if any.
10. A letter was sent to Ms Oliphant on 27 August 2009 (she acknowledged receiving the letter), but no response has been forthcoming.
a. The Portfolio Committee recommends that the National Assembly resolve to recommend that Ms Oliphant not be restored to office as a Magistrate in terms of section 13(4)(c) of the Magistrates Act, 1993.
Report to be considered.
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