The Judicial Conduct Committee (JCC) says Gauteng High Court judge Fayeeza Kathree-Setiloane should apologise to her former clerk for conduct “unbecoming of a judge” after she, in a widely distributed e-mail, created an impression that her clerks made a mistake that was hers.
Kathree-Setiloane was ordered to send a new e-mail to “correct the impression”.
The JCC’s decision is the culmination of a grievance that first drew public attention in April 2019, when Judicial Service Commission (JSC) interviews for the Constitutional Court had to be postponed for a day because justice Mandisa Maya, then Supreme Court of Appeal (SCA) president and recently nominated and recommended for chief justice, recused herself from them.
It emerged this was because then chief justice Mogoeng Mogoeng said he would be questioning Kathree-Setiloane on a complaint from her clerks during the time she acted as a judge at the apex court. One of the clerks was Maya's daughter, Wela Mlokoti.
During her interview, Kathree-Setiloane, a favourite for the Constitutional Court with many lawyers canvassed at the time, was grilled by Mogoeng about the clerks' complaint and other concerns he raised emerging from her stint as an acting justice. After the interview Mlokoti and Maya laid complaints against Kathree-Setiloane with the JSC. Maya later withdrew hers, but Mlokoti persisted.
Her complaint was initially dismissed by judge president Dunstan Mlambo, who put it down to a “clash of personalities” and a difference in working styles. But on appeal, the JCC said one aspect of Mlokoti’s complaint was valid.
Although she apologised privately to Ms Mlokoti, judge Kathree-Setiloane failed to take responsibility for her error as far as the registrar, the justices of the court and their clerks were concerned. She created an impression that it was Ms Mlokoti’s error.
— Judge Tati Makgoka
It scrutinised the complaint and said it was made up of four separate objections. Three were dismissed, but regarding the e-mail, the JCC’s judge Tati Makgoka agreed with Mlokoti. The e-mail concerned directions which should have been circulated for comment to other ConCourt justices before being sent to the general office for it to issue to the parties in the litigation. When justice Edwin Cameron asked her to comment on the directions, Kathree-Setiloane said “my clerks sent these directions out in error”.
Responding to Mlokoti’s complaint, Kathree-Setiloane said it was a “regrettable error caused by me replying in haste while away”. She said she twice apologised to her clerks for the inaccuracy — on the phone and in person. But Mlokoti said this was in private and in the minds of the court’s justices and her fellow clerks, she “remained with the stigma that she had acted improperly”.
Makgoka said: “I agree. Although she apologised privately to Ms Mlokoti, judge Kathree-Setiloane failed to take responsibility for her error as far as the registrar, the justices of the court and their clerks were concerned. She created an impression that it was Ms Mlokoti’s error. This was conduct unbecoming of a judge.”
Speaking to Sunday Times, Kathree-Setiloane said though the JCC’s decision did not order her to apologise, she was happy to do so and take full responsibility for instructing her clerks to send out the e-mail. She would be sending the required e-mail as soon as she had the contact details of the former judges and clerks who were at the court at the time.
Kathree-Setiloane said the JCC only notified her of Mlokoti’s appeal in October, five months after it was lodged. On the day the e-mail was sent, there was a bereavement in her family and she missed the e-mail. As a result, she had not made any submissions in response to Mlokoti’s appeal.
Mlokoti declined to comment.
- This article has been amended to rectify a factual error. Wela Mlokoti did not lodge an objection to the candidacy of Kathree-Setiloane at the JSC as reported previously. Instead, Mogoeng said he would be questioning Kathree-Setiloane on an earlier complaint by her clerks.
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