A judicial conduct tribunal to investigate potentially impeachable conduct by Gauteng high court judge Nomonde Mngqibisa-Thusi is scheduled to begin on Friday, with Mngqibisa-Thusi facing possible removal over a string of long delayed judgments.
At the time the complaint was laid by her judge president Dunstan Mlambo, there were five judgments outstanding for more than a year and six outstanding for more than six months.
On top of that, Mlambo listed 10 judgments that, though delivered by the time his complaint was laid, had taken “an unduly long time” to deliver. One of these took 27 months to deliver. The rest ranged from seven to 19 months.
By the time Mlambo’s complaint was heard by the Judicial Conduct Committee (JCC) — on June 12 2021 — six more delayed judgments, “with an average of nine months had been brought to the attention of the JP”, said the JCC in its April decision recommending a tribunal.
Under the constitution a judge may only be removed on the grounds of incapacity, gross incompetence or gross misconduct. The JCC’s decision, penned by Supreme Court of Appeal Justice Nambitha Dambuza, said: “It does appear that the complaint, if established, will indicate incapacity or gross incompetence.”
She added: “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.”
As to the cause, the JCC decision set out Mngqibisa-Thusi's response to the complaint. She had said that she had been suffering from anxiety and depression due to her son’s struggle with addiction, “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.”
Then, when she was attempting to work through the backlog, she had a fall in December 2020 and fractured her right wrist and elbow and was unable to use her dominant hand for two months.
She had discussed what she was experiencing with the deputy judges president in Johannesburg and Pretoria, who had attempted to assist her, but not Mlambo, she said.
In a dissenting decision, JCC member and retired Johannesburg deputy judge president Phineas Mojapelo said what Mngqibisa-Thusi referred to as an “age-old problem” was not necessarily a problem. “I would use a more neutral term like ‘condition’. This is her journey with African spirituality,” he said.
The four-member JCC was split on whether Mngqibisa-Thusi should face a tribunal
He said when this started manifesting itself, “being of Methodist upbringing and background, she resisted it, in her own words, ‘not sure of its origin or authenticity’”. She moved to the African Apostolic Church — “in a sense to find a home for her spirituality, but this was not to be”, said Mojapelo.
When she had the episode in court, “she was assisted on the spot by someone who appeared to understand African spirituality,” he said.
“She then resolved after consulting widely within the family and among colleagues to ‘explore and respond to the calling’,” said Mojapelo.
He said: “The incident and resurgence of African spirituality is an African phenomenon. I would not call it a problem. It is bound to manifest itself in any situation, again, including in any of the other spheres of government ... In a diverse multicultural society which we are, the judiciary should rise up to the occasion and learn to deal with and live with it.”
Mojapelo said since she did not disclose to Mlambo, there was no knowing how he would have dealt with her situation. She had already delivered the judgments that were the subject of the complaint, he said.
He would have chosen a different route to a tribunal, which deals with potentially impeachable conduct, and adopted the more “open-minded” procedure set out in section 17 of the JSC Act. Section 17 provides for an investigation into serious but not impeachable conduct, though it also makes provision for the investigation to lead to a tribunal.
The four-member JCC was split on whether Mngqibisa-Thusi should face a tribunal. Dambuza and Supreme Court of Appeal justice Dumisani Zondi favoured a tribunal, while Mojapelo and Gauteng judge Margie Victor favoured a section 17 inquiry. Zondi cast a deciding vote.
Mngqibisa-Thusi has been on suspension since June 29.
The tribunal will be chaired by retired Constitutional Court justice Chris Jafta. The other members of the panel are retired judge president of the Competition Appeal Court Dennis Davis and senior counsel Nasreen Rajab-Budlender.
However, it is unclear whether the tribunal will proceed on Friday as TimesLIVE Premium has confirmed that there has been an application to postpone, which must be decided before the rest begins.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.