5 February 2024
Illustration: Lisa Nelson
Johannesburg High Court Judge Denise Fisher has been taking a strong stance in litigation involving the Road Accident Fund (RAF), keeping a close eye on any signs of maladministration or possibly corruption.
But now the Judicial Conduct Committee has found she may have overstepped the mark and it has recommended that she answer to charges of misconduct.
The two cases in point were heard by Fisher in 2021. Both involved claims against the RAF, one by Marilyn Doris Taylor and the other by Hlengani Victor Mathonsi, both represented by personal injury attorneys De Broglio Incorporated.
In the Taylor matter, her attorneys and the RAF lawyers submitted that the RAF had settled for R1.3 million and asked Judge Fisher to remove the matter from the court roll.
In the Mathonsi matter, the lawyers asked Judge Fisher to sign off on an agreed settlement in the amount of R1.75 million.
Judge Fisher refused both requests. Eventually, she commented that the RAF was bankrupt and she made findings of impropriety against those involved in the two matters, including the attorneys, the medical experts and the actuary.
She referred all of them to their respective professional bodies and ruled that a copy of her judgment be delivered to the RAF, the Minister of Transport and the National Director of Public Prosecutions.
Those involved in the two matters appealed. In 2023, the Supreme Court of Appeal found in their favour, setting aside Judge Fisher’s orders.
In a unanimous judgment, Judge Christiaan van der Merwe writing for the court, said Judge Fisher’s “industry” could not be faulted.
“But it regrettably has to be said that not a single finding that she made had been open for her to make. Moreover, these findings were made without any admissible evidence. The findings in respect of the viability of the RAF, were mainly based on an affidavit of the acting chief executive officer of the RAF in another matter and the 2019 annual report of the RAF.
“The findings in respect of the settlement agreements and the conduct of the affected persons, were based on the unspecified knowledge of the judge of the facts and circumstances of other matters and the pleadings and expert reports in the court files. It is trite that none of this constituted evidence before the court.
“This injudicious overreach has to be strongly deprecated.”
Judge van der Merwe said where misappropriation of public funds was properly raised before a court, it must be dealt with. But a court had no general duty or power to exercise oversight over expenditure of public funds.
“To sum up, when the parties to litigation confirm that they have reached a compromise, a court has no power or jurisdiction to embark upon an enquiry as to whether the compromise was justified on the merits of the matter or was validly concluded,” Judge van der Merwe said.
De Broglio Inc lodged a complaint against Judge Fisher with the Judicial Services Commission.
It was initially dealt with by Gauteng Judge President Dunstan Mlambo, who dismissed it on the grounds that it solely related to the merits of a judgment or order. In other words, an aggrieved litigant cannot complain about a judge, just because they don’t like the judgment.
But De Broglio appealed this decision saying the complaint was that she had “trampled on the parties rights and ignored the basic principle of audi alteram partem” [audi alteram partem means listen to the other side].
The appeal came before the Judicial Conduct Committee (JCC), which comprised Deputy Chief Justice Mandisa Maya and Judges Chris Jafta, Halima Saldulker and Nolwazi Mabindla-Boqwana.
In their ruling, they noted that Judge Fisher had made “adverse and damning findings” against attorneys and their medical expert witnesses, concluding that the attorneys were grossly inadequate, corrupt and dishonest.
“Their expert witness who is an actuary was not spared. That expert was accused of intentionally using his calculations on patently false assumptions and that he produced a contrived report,” the JCC said.
“As they did not see it coming, the affected attorneys and medical witnesses were surprised by the scathing judgment and the findings made against them, together with the ensuing referrals to their various professional bodies and the NPA.”
The JCC said the SCA had then set aside those referrals, finding that none of the findings of dishonesty and impropriety were properly made before Judge Fisher.
The Judicial Code of Conduct stated that before commenting adversely on a legal practitioner, the judge must give that person the opportunity to deal with the allegations and to ensure that hearings are fair.
De Broglio had specifically referred to a breach of both in its complaint.
Taken at face value, these allegations may support a claim that Judge Fisher had committed misconduct and had breached the code, the JCC said.
“While not rising to the level of gross misconduct, it does warrant further probing,” the JCC said, ruling that Judge Fisher had a case to answer and referring the complaint to an inquiry in terms of Section 17 of the Judicial Services Commission Act, which governs misconduct which is serious, but not impeachable.