JSC recommends tribunal probe possible impeachable conduct by two judges despite their health 'challenges'

Former Gauteng deputy judge president Phineas Mojapelo says he is unable to support a decision that complaints against judges Nomonde Mngqibisa-Thusi and Tshifhiwa Maumela would, if established, indicate incapacity, gross incompetence or gross misconduct and therefore impeachable conduct. 

Mojapelo made this finding in two dissenting separate decisions concerning complaints lodged by Gauteng judge president Dunstan Mlambo against the two judges for a number of outstanding judgments in the cases they presided over. 

The judicial conduct committee, in separate majority decisions released on Friday, recommended judicial conduct tribunals investigate potentially impeachable conduct against the two judges. 

In the case of Maumela, who is presiding over the Senzo Meyiya murder trial, the committee said while Maumela’s alleged health challenges were a relevant consideration in the determination of the complaint, the seriousness of the allegations could not be ignored. 

Mlambo complained about a number of outstanding judgments Maumela presided over, ranging from seven to 26 months. When Mlambo lodged the complaint, three judgments were outstanding, the longest being 26 months. 

Maumela admitted the judgments were delayed, even unduly delayed.

He said the delays were caused by challenges he had experienced with his health.

Despite medical assistance, including homeopathic care, his health challenges persisted, he said. Then Covid-19 set in and he could not visit his doctor in Limpopo nor obtain his herbal medicines.

Maumela said he suffered a stroke in September 2020.  

In addition, his wife had been seriously ill since 2017 and fallen into a coma during the third of five medical procedures performed on her.

Maumela undertook to furnish medical records relating to his health.

He apologised to those affected by his inability to work and undertook to “even out” all outstanding work. 

 “It is not within the powers of this committee to grant pardon to judge Maumela as he suggests. The task of this committee is to determine the forum at which the complaint against him will be determined,”  said judge of appeal Nambitha Dambuza in her decision.

She said the allegations which formed the basis of the complaint related to Maumela's core duties as a judge.

Dambuza's decision was supported by  judge of appeal Dumisani Zondi, a member and chairperson of the judicial conduct committee who cast a deciding vote.

Mojapelo, in his decision supported by judge Margie Victor, saying he would have recommended the complaint against Maumela be referred to the more open-minded section 17 inquiry and not to a tribunal process that determined impeachable conduct. 

He said when the complaints were considered by the committee, the three judgments had already been delivered.  

“His condition appears not to have been known to (Mlambo). The complaint was filed without that knowledge,” Mojapelo said.

The complaint against Mngqibisa-Thusi was based on 10 judgments, four of which had been reserved for periods ranging between 12 and 20 months and the other six for periods ranging from six to 11 months.

In her written response to the allegations. Mngqibisa-Thusi  said she had been suffering from anxiety and depression for a “couple of years”, caused, among other things, by her son’s addiction to drugs, together with “an age-old problem that required her to undergo some form of African initiation”.

She had 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.

She had discussed these challenges with the deputy judge presidents in Johannesburg and Pretoria who tried to assist her. 

In his reasons, Mojapelo said there were two interrelated problems affecting Mngqibisa-Thusi, the drug problem of her son which triggered her anxiety and depression.

“These problems are not isolated to the present respondent judge. They are societal in nature and may thus manifest themselves in other spheres of government and in society in general.”

Mojapelo said what Mngqibisa-Thusi referred to as “an age-old African problem”, was not necessarily a “problem” and he would use a more neutral term like condition.

“This is her journey with African spirituality.”

Mojapelo said the incident and resurgence of African spirituality was an African phenomenon.

“In the sense that it may not have manifested itself within the judiciary up to this stage, it is a new challenge.”

He said in a diverse multicultural society , the judiciary should rise up to the occasion and learn to deal and live with it.

“The novelty should not be a reason for rejection because rejection may be a demonstration of bias towards what is inherently African in an African society.”

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