Judge ‘grossly misconducted’ herself – Mlambo
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 Mngqibisa-Thusi is guilty of gross misconduct, misconduct or incompetence, 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, said to Mlambo.
“It does,” he responded, saying that he had not reported other tardy judges to the Judicial Services Commission (JSC).
“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, 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. However, Mngqibisa-Thusi’s evidence and that of her two witnesses, a psychologist and a spiritual expert, will be held behind closed doors on Tuesday.
Mlambo, under cross-examination by 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.” Malindi suggested to 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 replied: “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 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.”
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,” Jafta said.
He noted that the judicial conduct committee, which initially considered the complaint by Mlambo, had only recorded that Mngqibisa-Thusi was possibly guilty of misconduct or incompetence and the tribunal might be bound to only consider those charges.
Mlambo said the legal teams would have to make submissions in that regard.
Mlambo was the only witness for the JSC.
The hearing is expected to conclude this week.
It’s high time judges who don’t deliver feel the pinch