Judge’s ‘spiritual calling’ in legal spotlight
Cultural and religious rights test for the Judicial Conduct Tribunal
● A Judicial Conduct Tribunal investigating possibly impeachable conduct by Gauteng judge Nomonde Mngqibisa-Thusi was postponed on Friday after the judge’s legal team and the tribunal’s evidence leader said they were not ready to proceed due to outstanding expert reports.
“Everything turns on those two reports. [They] are very important,” said evidence leader advocate Adrian Mopp.
Mngqibisa-Thusi is facing possible impeachment for a string of long-delayed judgments. At the time the complaint was laid, in October 2020, by her judge president Dunstan Mlambo, there were five judgments outstanding for more than a year and six for more than six months.
Mlambo listed 10 more judgments that, though delivered by the time his complaint was laid, had taken “an unduly long time”. One of them took 27 months. By the time the complaint was heard by the Judicial Conduct Committee (JCC), in June 2021, there were another six that had been brought to Mlambo’s attention — delayed by an average of nine months, said the JCC, which recommended a tribunal.
The JCC decision said Mngqibisa-Thusi attributed the delays to a few factors. First, anxiety and depression due to her son’s struggle with addiction. Then there was what Mngqibisa-Thusi called in her written submissions to the JCC “an age-old problem that required [her] to undergo some form of African initiation”. Deputy judge president Phineas Mojapelo, a JCC member, referred to this as “a journey with African spirituality” and a “calling.” Finally, when MngqibisaThusi was trying to clear the backlog in her judgments, she fell and fractured her wrist and was unable to write for two months.
The tribunal will be the first where delayed judgments have been attributed, in part, to a journey of African spirituality. It may test the judiciary’s ability to accommodate judges’ religious and cultural rights, and how these should be balanced with the administration of justice and rights of litigants to have their cases determined without undue delay. This may well be an area where expert evidence might assist the tribunal. On the other hand, it may turn out that other factors weigh heavier with the tribunal, such as mental health or competence issues.
It was unclear from the hearing on Friday what the expert evidence Mngqibisa-Thusi was planning to produce related to. Her attorney, Mongezi Ntanga, said the tribunal rules prevented him from answering journalists’ questions and the only hint came from the tribunal’s chair, retired Constitutional Court justice Chris Jafta, who used the term “medical” to describe the evidence.
The four-member JCC was split on whether Mngqibisa-Thusi should face a tribunal. Under the constitution, a judge may be removed only on the grounds of incapacity, gross incompetence or gross misconduct. The JCC’s majority decision, penned by Supreme Court of Appeal Justice Nambitha Dambuza, said: “It does appear that the complaint, if established, will indicate incapacity or gross incompetence.”
She added: “The delicate function of investigating the cause fully and any ameliorating aspects can only be properly investigated by a tribunal, given the seriousness of the matter.”
On undergoing an initiation, Dambuza said Mngqibisa-Thusi had said she “attempted to ameliorate the effects of the latter challenge by subscribing to the African Apostolic Church”.
“The problem seemed to have subsided for a while; however, in the four years or so preceding 2020, it started ‘creeping back, incrementally’, to the extent that during November 2020 she had an ‘episode’ while presiding over a criminal case in court.”
In his dissenting decision, Mojapelo said what Mngqibisa-Thusi referred to as an “ageold problem” was not necessarily a problem. “I would use a more neutral term like ‘condition’. This is her journey with African spirituality,” he said.
He said when this started manifesting itself, “being of Methodist upbringing and background, she resisted it, in her own words, ‘not sure of its origin or authenticity’”. She moved to the African Apostolic Church — “in a sense to find a home for her spirituality, but this was not to be”, said Mojapelo.
When she had the “episode” in court, “she was assisted on the spot by someone who appeared to understand African spirituality,” he said. “She then resolved after consulting widely within the family and among colleagues to ‘explore and respond to the calling’,” said Mojapelo.
“The incident and resurgence of African spirituality is an African phenomenon. I would not call it a problem. It is bound to manifest itself in any situation, again, including in any of the other spheres of government ... In a diverse, multicultural society which we are, the judiciary should rise up to the occasion and learn to deal with and live with it.”
Mojapelo said he would have chosen a different route to a tribunal and adopted the more “open-minded” procedure set out in section 17 of the JSC Act. Section 17 provides for an investigation into serious, but not impeachable, conduct, though it also makes provision for the investigation to lead to a tribunal.
Dambuza’s decision was supported by Supreme Court of Appeal justice Dumisani Zondi, while Mojapelo’s decision was supported by Gauteng judge Margie Victor. Zondi cast a deciding vote.
On Friday, Mopp and Mngqibisa-Thusi’s representative, judge Gcina Malindi, representing her as a colleague, were extensively questioned about the necessity for a postponment; and about how long they really needed. Questions came thick and fast from Jafta and the other panel members, retired competition appeal court judge president Dennis Davis and senior counsel Nasreen Rajab-Budlender.
Davis said the JSC had been “criticised heavily, over a number of years, for tardiness in dealing with these sorts of cases”. The longer the delay, the longer the “inference is that these things never, ever get resolved,” he said. But after another back and forth, Jafta said: “It seems to me that we can’t avoid a postponement.”
The matter was postponed to January 29.