ATC130418: Report of the Portfolio Committee on Justice and Constitutional Development on the suspension of Magistrate L Myles, dated 27 March 2013:
Justice and Correctional Services
Report of the Portfolio Committee on Justice
and Constitutional Development on the suspension of M
agistrate L Myles
, dated 27 March 2013:
The Portfolio Committee on
Justice and Constitutional Development, having considered the report on the
suspension
of Magistrate L Myles, an additional magistrate at
Upington
, reports as follow
s:
1.
The Ethics Committee, which is a
sub-committee of the Magistrates Commission, ordered that there be an
investigation into Ms Myless removal from office on account of continued
ill-health.
2.
Ms Myles was informed of the Ethics
Committees decision and submitted the requested medical information to the
Commission. The information supplied by Ms Myles was, in turn, submitted for
expert opinion to the service provider appointed to evaluate and advise on
ill-health retirement.
3.
The relevant service-provider
reported that, since April 2009, Ms Myless health has been compromised. It
found that her working environment contributed significantly to her condition.
Still, she was found fit enough to continue with her work. However, because of
her medical history, it recommended that where possible she be accommodated in
the workplace by reducing her workload and allocating less stressful cases to
her. The employer should be more empathic and supportive towards her. Also, she
should continue with regular medical treatment.
4.
On 1 December 2011, having
considered the medical reports, together with other relevant information
including her attendance record since November 2004, the Ethics Committee
formed the opinion that Ms Myles did not have the capacity to carry out her
duties of office in an efficient manner due to continued ill-health. Ms Myles
was informed of the Committees opinion and that she could submit written
comments on it to the Chairperson of the Commission.
5.
On 9 January 2012, the Commission
received Ms Myless written comments on the opinion, which argued that her sick
leave was not unreasonable as it was covered by medical certificates for every
period. She submitted that she had never asked to be accommodated with a
reduced workload; her work performance showed that she was capable of producing
longer court hours; and that she was able to dispose of more matters than her
colleagues. In her view, she was capable of carrying a normal workload. She
questioned her treatment by the Commission and submitted that the enquiry into
her capacity to carry out her duties of office in an efficient manner due to
continued ill-health was both substantively and procedurally unfair.
6.
On 16 February 2012, the Ethics
Committee considered her comments but disagreed as it felt that the review of
Ms Myless capacity to carry out her duties of office in an efficient manner
was fair. Ms Myles was still on sick leave and it was unclear when she would
return to work. The Ethics Committee, therefore, resolved to recommend to the
Commission that Ms Myles be removed from office due to continued ill-health.
It, however, noted that the expert opinion suggested that she be accommodated,
where possible. The question was whether it was possible to accommodate her as
recommended given her sick leave history and the extent to which she had
already been accommodated in terms of sick and vacation leave. The relevant
Cluster Head was approached, who confirmed that the judicial officers at
Upington
are struggling to cope under the normal workload.
During the last judicial staff establishment investigation it was recommended
that one further post of magistrate is required at
Upington
due to the increased workload. The post has not been created yet and the
Magistrate at
Kenhardt
is assisting at
Upington
three days per week. The heavy workload at
Upington
court requires dedicated, versatile and
hardworking magistrates who are able to assist across all divisions on a daily
basis. There is no less stressful court and/or environment at
7.
The Commission, therefore, resolved
to support the Ethics Committees recommendation that Ms Myles be removed from
office on account of her continued ill-health and advised the Minister
accordingly.
8.
On 21 August 2012, the Committee on
Justice and Constitutional Development (the Committee) considered whether Ms
Myles should be removed from office on account of her continued ill-health. The
Committee had certain concerns and, therefore, requested that a legal opinion
be obtained from the State Law Advisors on the following:
o
Whether the Magistrates Commission
had correctly applied the administrative procedure provided for in Regulation
29 of the Regulations for Judicial Officers in the Lower Courts,
1993;
o
Whether
the Commissions opinion that Ms Myles did not have the capacity to carry out
her duties of office in an efficient manner due to continued ill health is
justified; and
o
Whether
it was proper for the Commission to recommend to the Minister that Ms Myles be
removed from office on account of continued ill-health, despite the medical
opinion to the contrary, but in view of continuous absenteeism and with due
regard to the background and peculiar circumstances of the matter?
9.
The legal opinion obtained from the
State Law Advisors, dated 19 November 2012 concluded that:
o
The
Commission had correctly applied the administrative procedure in terms of
Regulation 29.
o
It
was logical that the recommendation of the medical experts that Ms Myles
continue with her work was subject to it being possible to reduce her workload
and to assign less stressful cases to her. If this was not possible, it follows
that she was unable to continue the work and was not fit to do her work as a
magistrate. Therefore, the Commissions opinion that she was incapable of
carrying out her duties in an efficient manner due to continued ill health was
justified.
o
Ms
Myless continuous absenteeism was the direct result of her continued
ill-health. For this reason, the issues concerning Ms Myless continued
absenteeism could not be disregarded nor could her absenteeism be viewed in
isolation from the issues that dealt with her ill-health when determining
whether she was fit to continue work or be removed from office.
Recommendation
Having
considered the legal opinion and the report on the
suspension
of Magistrate L Myles, the Committee recommends that
the National Assembly confirms the suspension.
Report to be considered
Documents
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