‘Judge president should face conduct tribunal’
Judge Dunstan Mlambo should be investigated over allegations that he lied to parliament, JCC appeals committee says
● The Judicial Conduct Committee (JCC) appeals committee has recommended that Gauteng judge president Dunstan Mlambo face a judicial conduct tribunal to investigate whether he “lied” to parliament and the justice minister in a protracted dispute with KwaZulu-Natal advocate Anthony Brink over Brink’s non-appointment to a post at Legal Aid South Africa (Lasa) in 2009.
Brink was notorious in the late 1990s as an HIV/ Aids dissident, claiming to have influenced former president Thabo Mbeki’s position. He came into the limelight again in November after UDM leader Bantu Holomisa announced a “highly shocking and damaging” intelligence report on judicial corruption “purportedly drafted by Ms Thembisile Majola, the recently resigned director-general of the State Security Agency”.
It quickly emerged that the report — containing the same allegations that are covered by the JCC appeal decision — was in fact drafted by Brink and sent to Majola for her “to submit to President [Cyril] Ramaphosa after investigation, verification, and editing at will”. It was widely rubbished in the media as spurious.
Brink’s eight complaints against Mlambo were investigated by the JCC under section 17 of the Judicial Service Commission (JSC) Act, which deals with “serious, non-impeachable complaints”. They were initially all dismissed — by the JCC’s Dumisani Zondi, also a Supreme Court of Appeal (SCA) judge — as lacking in substance.
The appeals committee said it was recommending a tribunal because Zondi had not investigated properly and there were “many questions unanswered”.
The majority of the appeals committee, retired Constitutional Court justice Bess Nkabinde and SCA justice Tati Makgoka, said Brink’s allegations were “undoubtedly of a serious nature”. Yet Mlambo had given “bare denials” instead of “meaningful, comprehensive and seriatim answers”. Zondi should have “used his inquisitorial powers to probe the complaints further”, said Nkabinde and Makgoka.
The appeals committee had no power under the JSC Act to investigate or refer the complaints back to Zondi, they said. The only options were to decide Mlambo was guilty (and impose a penalty for “serious non-impeachable” conduct, such as an apology or a fine), or recommend further investigation by a tribunal.
Nkabinde and Makgoka set out the history of Brink’s complaints. Brink was initially shortlisted and recommended for a senior litigator post but never heard back for a second round of interviews. Eventually, after some inquiries, he was told the senior litigator posts had been frozen.
Disgruntled, he sought answers via the Promotion of Access to Information Act (PAIA) and repeated pleas to Mlambo and the board. He went to the minister and to parliament’s justice portfolio committee. He alleged an “ulterior motive” for the freezing of the posts: that Mlambo wanted the job to go to a friend.
Brink went to the labour court on the basis of unfair discrimination because of his political views on HIV/Aids. He tried to subpoena Mlambo to testify in court, but did not proceed with the application. He lost in the labour court and his attempts to appeal failed. Finally, he approached the JCC.
Zondi rejected all his complaints. But Nkabinde and Makgoka said questions remained, one being the explanation Mlambo had given to the minister and parliament for the freezing of the posts — that it was due to financial constraints. Brink had said this was a lie.
Nkabinde and Makgoka said: “One of the lingering questions is this: if indeed it was Lasa’s official decision to freeze the senior litigator posts, why is there no record of such a decision in the minutes of the relevant meetings of its board or annual reports? ... The very fact that there is no official record of the freezing decision makes it difficult to argue against the appellant’s characterisation of the decision as ‘an illegal, unauthorised, unapproved, off-therecord, corruptly motivated abortion’ of his appointment.”
They said Zondi should have probed further. Yet they were also not willing to find that Mlambo was guilty: “We cannot make such a finding against the respondent [Mlambo] when the complaints against him have not been fully investigated.”
Contacted by the Sunday Times, Mlambo said: “The minority ruling sets the record straight.”
The minority decision, by Constitutional Court justice Rammaka Mathopo, said the record was “replete with many instances” where Brink made disparaging remarks against judges, including labour appeal court judge president Basheer Waglay, whom he said Mlambo induced to summarily dismiss his appeal petition.
“He also said ‘Zondi JA’s cowering deferential approach to the disputes before him is Yes Baas to whatever the respondent [JP Mlambo] states magisterially with a great show of feigned indignation’,” said Mathopo.
Mathopo said Brink’s conclusion that Mlambo was part of a “grand scheme to corruptly and illegally deny him an opportunity” was answered when Mlambo said he did not deal with operational issues such as recruitment at Legal Aid South Africa.
Brink had also, in the labour court, at first made the same claims — “a mirror image of all these allegations ”— and then withdrawn and disavowed them, said Mathopo. This should have been the end of the matter, he said.
“It is impermissible for this committee to kick to touch and not decide the issues confronting us. [Tribunals] must deal with deserving cases of proper judicial impropriety, not spurious and scurrilous allegations,” said Mathopo.
Brink told the Sunday Times he was “gratified that the JSC has taken my documented charges against Mlambo JP more seriously than the newspapers did recently, in calling them ‘false’ without investigating them. Second, you cannot imagine how much I relish the prospect of cross-examining Mlambo JP at his coming trial on my charges before the JSC tribunal on pain of imprisonment for lying under oath,” he said.
The JCC appeals committee decision must now be considered by the JSC, which will decide whether it agrees with the majority recommendation.