30 January 2024
Judge Mngqibisa-Thusi is appearing before a judicial tribunal for delivering judgments very late. Image: Lisa Nelson
Gauteng Judge President Dunstan Mlambo said the disciplinary process involving the possible impeachment of suspended Judge Nomonde Mngqibisa-Thusi for failing to deliver 21 judgments timeously have “pained him”.
Giving evidence before the Judicial Conduct Tribunal inquiry tasked with determining if Judge Mngqibisa-Thusi is guilty of gross misconduct, misconduct or incompetence, Judge Mlambo, who laid the complaint, said, “We should not be here”.
He said that had she told him she was having problems, he would have assisted her. Instead she had ignored his repeated inquiries regarding when she would hand down her reserved judgments.
“It seems to me that this process pains you,” tribunal chair, retired Constitutional Court Judge Chris Jafta commented to Mlambo.
“It does,” he responded, saying that he had not reported other tardy judges to the Judicial Services Commission (JSC).
“There is a judge who has been medically boarded. I didn’t file a complaint because when I went into his issues, I realised that the problems were insurmountable. It’s not robotic. I don’t report everyone [to the JSC]. I engage with people. That judge is now out, and litigants are safe from him.
“But Judge Mngqibisa-Thusi grossly misconducted herself by not taking responsibility and corrective action. It is high time that judges who don’t deliver judgments feel the pinch. It’s gone on for long enough,” he said.
At the start of Monday’s hearing, Judge Jafta ordered that in terms of the JSC Act, the hearing would automatically be held in camera unless the media, or members of the public, made an application for it to be open.
The hearing was therefore declared closed to the media and the public and the livestream of the proceedings on the RSA Judiciary YouTube channel was shut down.
But later, following representations from two television stations, the live feed resumed. But Judge Mngqibisa-Thusi’s evidence and that of her two witnesses, a psychologist and a spiritual expert, will be held behind closed doors on Tuesday.
Judge Mlambo, under cross-examination by Judge Mngqibisa-Thusi’s legal representative, Judge Gcina Malindi, insisted that she was a senior judge who, because she often presided over criminal trials, rather than civil matters, had a lighter workload than even her junior colleagues.
He said that he was however not in a position to contradict what her experts had said about her “conditions”.
“I don’t dispute that she was afflicted. But my point as head of court, is if you have a situation that is stopping you from performing your duties, it’s your responsibility to give the powers that be an explanation so that you can be assisted.
“Judges are not children. They know what their responsibilities are.”
Judge Malindi suggested to Judge Mlambo that there should be proper processes in place when judges were experiencing problems. “As a judge who has practiced in many divisions, and as a leader, you would appreciate that certain matters which bring shame and embarrassment are not easy for certain people to discuss even with their leaders,” he suggested.
Mlambo responded, “I take issue with this shame issue. I have heard all sorts worse with other colleagues. But they wanted me to understand what they were going through. And I want to believe in those instances I have helped.”
He conceded that Judge Mngqibisa-Thusi had now delivered all of the reserved judgments but refused to concede that her performance had otherwise been exemplary.
“When she writes judgments, she writes good judgments. But she was often on my long outstanding judgment list in spite of having a lesser workload than those much junior to her.”
Judge Jafta questioned whether the tribunal was dealing with a matter of gross misconduct and impeachment.
“I am not aware of a matter where a judge has been impeached successfully for failing to deliver judgments. It has never happened. So we have to be cautious,” Judge Jafta said.
He noted that the Judicial Conduct Committee, which initially considered the complaint by Judge Mlambo, had only recorded that Judge Mngqibisa-Thusi was possibly guilty of misconduct or incompetence and the tribunal might be bound to only consider those charges.
Judge Mlambo said the legal teams would have to make submissions in that regard.
Judge Mlambo was the only witness for the JSC. The hearing is expected to conclude this week.