Free State judge president Cagney Musi has defended his decision to appoint an acting judge, Nompumelelo Gusha, to a high-profile state capture case in which she acquitted the corruption accused, and the decision was overturned by the Supreme Court of Appeal (SCA).
Musi was interviewed by the Judicial Service Commission (JSC) on Thursday for the deputy chief justice position, which has been vacant since Mandisa Maya was appointed chief justice in July 2024.
He competed against Gauteng judge president Dunstan Mlambo and Northern Cape judge president Pule Tlaletsi. The JSC recommended Mlambo for the position.
Musi was scrutinised by several commissioners for his decision to appoint the acting judge to preside over the R24.9m Nulane tender case — the first high-profile state capture case at the Free State high court.
The accused faced fraud and money-laundering charges and Gusha, in 2023, remarked the NPA case was handled in a “lackadaisical manner”.
The SCA in turn described the judgment as a “failure of justice”.
Musi said he appointed Gusha because she had more than 20 years of experience in criminal cases.
“Nobody is saying this is Nompumelelo Gusha who started off in the department of justice as prosecutor in 1999 and has been a magistrate, a senior magistrate and been a regional magistrate. She has 20 years’ service more than some of the judges in my court as a criminal court practitioner,” he said.
Musi said judges made mistakes and Gusha’s findings on the case were wrong.
“I cannot understand why people think that because an acting judge got it wrong … it is a cardinal sin, and that when a person is appointed as a judge you magically become indulged with all the knowledge, and you are flawless and do not make mistakes.”
The commissioners pressed Musi for more answers, with commissioner Fasiha Hassan remarking his response suggested he might not be taking accountability for a decision he took that affected the credibility of the NPA.
Musi, who was part of the SCA panel of judges on the appeal, conceded he was disappointed, and if faced with the same situation he would take a different decision.
“The judge got it wrong. That is why we have courts of appeal. I agree totally with the SCA.”
He said Gusha was no longer at the High Court and was receiving training.
Justice and constitutional development minister Mmamoloko Kubayi asked whether there was an issue between the Free State High Court division and NPA.
Last year, the director of public prosecutions in the Free State, advocate Navilla Somaru, requested that the asbestos fraud tender case involving former ANC secretary-general Ace Magashule be presided over by a judge from outside the province.
Kubayi said in the letter there seemed to be a suggestion that NPA was concerned about bias issues related to the provincial bench.
Musi said he was baffled by the request because there were no issues.
“When the deputy judge president told me, we were baffled. [The NPA] could have discussed the issue before leaking the [request] to the press. There were never issues,” he said.
Advocate Tembeka Ngcukaitobi asked Musi whether he was certain about his statement the NPA leaked the request letter.
“An accusation coming from the judge president of such impropriety can be a criminal offence for the NPA. Do you want to revisit that statement?” Ngcukaitobi asked.
Musi said though there was no evidence the NPA leaked the letter, it did not deny the allegation when put to them.
“You will note in the communication to the deputy judge president that allegation is also made because when she received the letter from the NPA, the press already had that letter and reported. She spoke to the DPP to say, well, ‘how does this happen?’ That is where that inference comes from.
“There is no direct evidence, probably inferential reasoning. But maybe because it is inferential reasoning and there is no concrete evidence, it is maybe an unfortunate statement to make.
“They did not refute the allegation when it was made.”
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