The Judicial Service Commission (JSC) announced on Friday that it recommends suspension of two Gauteng high court judges, due to failure to deliver judgments timeously, pending a decision of a judicial conduct tribunal.
The commission is established in terms of the constitution with the function of selecting people for appointment as judges and of investigating complaints against judicial officers.
Complaints of judicial misconduct were laid in 2020 against judges Tshifhiwa Maumela and Nomonde Mngqibisa-Thusi by Gauteng judge president Dunstan Mlambo. The matter was taken up by the judicial conduct committee, made up solely of other judges.
The committee delivered its two reports to the JSC. After deliberating on the reports, the JSC requested chief justice Raymond Zondo to appoint a tribunal to consider the complaints and suspend both judges, pending the tribunal’s decision.
If the tribunal finds there has been misconduct, it will go back to the JSC for a final decision on the way forward.
Regarding Friday’s decision, the committee’s reports on both judges were split. The conduct committee for both judges comprises Supreme Court of Appeal (SCA) judge Nambitha Dambuza, retired Gauteng deputy judge president Phineas Mojapelo, retired judge and newly appointed ombudsman for the insurance industry Margie Victor and acting committee chair and SCA judge Dumisani Zondi.
Judge Tshifhiwa Maumela
Maumela came to prominence recently as a result of the much publicised Senzo Meyiwa murder trial, which he presides over and which is due to resume next week. It is likely he will remain on this case.
The committee investigated 12 matters Mlambo referred to as the basis for his complaint.
The committee was split, however, between Dambuza and Zondi who ruled against Maumela and Mojapelo, and Victor wanting to show more leniency. Dambuza’s decision to recommend a tribunal was supported by the deciding vote of acting committee chair Zondi.
At the time of Mlambo’s complaint in 2020 these 12 matters were either outstanding or had been handed down but only after what Dambuza called “an unreasonable period”. Judicial norms and standards state judgments should be handed down within three months of being reserved, a frequent bugbear at recent JSC hearings for judicial vacancies. Dambuza in her decision noted that some of Maumela’s judgments took up to 20 months to be delivered.
In response, Maumela admitted these delays. He explained that he suffered from health problems. Also, his secretary left without notification, making the handover of work to another an issue. He also was dealing with significant family concerns. Maumela was apologetic in his representations to the conduct committee.
Despite these challenges, Dambuza wrote that “the seriousness of the allegations cannot be ignored. The allegations which form the basis of the complaint relate to his core duties as a judge.”
Dambuza said that Mlambo had complained about Maumela before, pertaining to judgments from 2010. “This gives an impression that the problem may be recurrent. The potential harm to litigants if the complaint were to be established is quite serious.”
As a result, Dambuza recommended to the JSC “that the complaint should be investigated by the tribunal.”
Mojapelo, writing the minority decision, took issue with the dismissal of Maumela’s health issues. He said that by the time the complaints about the judgments were considered by the JSC “all the judgments complained of had been delivered.”
While he acknowledged Mlambo’s complaint, which read alone indicates an impression of misconduct, Maumela’s explanations “paints a picture of a judge struggling over a long time with health problems but delivering judgments, understandably taking longer than other judges with no medical or health problems”. Mojapelo also found that “understanding is lacking” regarding particular circumstances of particular judges in a difficult working environment.
He therefore recommended that instead of tribunal processes the JSC opt for an “open-minded investigation” instead. However, in the end, Dambuza’s recommendation obtained the majority vote.
Judge Nomonde Mngqibisa-Thusi
Mngqibisa-Thusi is notable for her high court ruling that sections of the law which prevented parents from burying foetus’ remains less than 26 weeks old were unconstitutional. (A unanimous Constitutional Court judgment, however, disagreed.) However, like Maumela, her judge president Mlambo complained of late judgments. There were at least five judgments at the time of the complaint that were outstanding after 12 months, while another judgment had taken 27 months to be delivered. When deliberations began, more delayed judgments were noted.
In response, Mngqibisa-Thusi explained she had been dealing with her own health problems. She also had an accident that hampered her ability to work.
Dambuza concluded that: “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.” In other words, it is possible a tribunal could find in Mngqibisa-Thusi’s favour since it is, unlike the committee, properly placed to investigate.
Mojapelo, however, again took issue with the treatment of a judge’s health issues, as well as the dismissals to do with African spirituality. The cumulative effect of her responses, he wrote, indicates “her inability to deliver judgments within what is the norm in her division.” None of it, he said “was known nor factored in the planning and expectations of her performance” from the judge president. As a result, any decision he then took was “impoverished” due to not having this knowledge.
Much like with Maumela, he recommended an open-minded investigation rather than a tribunal.
Tribunal and suspension
After receiving the reports, the JSC decided to request Zondo to establish a tribunal and to request Ramaphosa to suspend the two judges pending the outcome of the tribunal’s processes on condition that they must during the period of suspension finalise all matters that are presently before them.
This means, for example, Maumela will not be immediately removed from the Meyiwa trial. Ramaphosa has yet to announce his decision.
Judges Matter, a civil rights watchdog monitoring the courts, welcomed the JSC’s decision. The organisation's research and advocacy officer Mbekezeli Benjamin hoped that the tribunal’s findings and recommendations will identify remedies for the broader concerns about judicial wellness and the pressures judges face “as this speaks directly to the health and sustainability of our judiciary”.
Helen Suzman Foundation director Nicole Fritz stressed that “judgment writing and delivery are at the heart of what is required of judicial office and the obligations owed by judges to individual litigants and the public at large”.
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