Suspended KwaZulu-Natal regional court president Eric Nzimande is to challenge the process which resulted in him facing 162 charges of misconduct including that he sexually harassed an acting magistrate and took money from lawyers in return for acting regional court magistrate appointments.
His challenge will be that the acting magistrate who first laid a complaint against him with the Magistrate’s Commission in 2015 had withdrawn her statement.
In a document read out by his lawyer Ravindra Maniklall on Monday at the disciplinary committee, chaired by retired Supreme Court of Appeal judge Jeremiah Shongwe, Nzimande said the commission should then have “cleared his name” but instead it continued to violate his constitutional right to privacy.
This resulted in warrants being authorised to gain access to his cellphone records, his bank account and to the databases of casinos, and unlawful digging into his private affairs and a “persecution of him”.
Should he succeed in this argument, it may mean the commission will not be able to rely on those records to prove its case.
And the witnesses may also prove to be unhelpful.
Evidence leader advocate Sipokazi Poswa-Lerotholi, in her opening statement, said: “Some are co-operative and some are not. But all have been subpoenaed [to testify].”
Maniklall said at least half the witness statements were exculpatory of Nzimande and in some cases no statements had been taken.
“We have charges here akin to the Prevention of Organised Crime Act for alleged bribery. There is no factual or legal foundation for this. The witnesses say they got no favours from him.”
Earlier, Poswa-Lerotholi said the investigation had been prompted by a complaint from Lindelwa Gumede who alleged Nzimande was “demanding favours”, either sexual or monetary in return for acting regional court magistrate appointments.
She said she opted to give him money (about R140,000 according to the charge sheet) because she feared losing her job and she wanted to avoid having to give him sexual favours.
“But this did not protect her from his sexual harassment,” Poswa-Lerotholi said.
“He would ask her to sit on his lap and make subtle and not so subtle sexual remarks to her. She said if she did not co-operate, she would be rebuked and he would make her life unbearable. Others in the “cohort” were favoured by Nzimande, they got less work and generally were not disciplined.”
The question is, why did the Magistrate’s Commission investigate a withdrawn complaint for the past eight years?
— lawyer Ravindra Maniklall
Poswa-Lerotholi said Gumede had, with her statement, put up her bank records to show the payments she made to Nzimande.
However, “later on” she had withdrawn her statement because she did not have funds to pay for her legal fees but she insisted the contents were true.
It was based on this statement that the investigation began, the matter was reported to SAPS, and section 205 warrants were issued to obtain Nzimande’s bank statements and other records which showed a “flow of funds” into his accounts from acting magistrates.
She said it mattered not whether this money constituted “bribes” because receiving funds from others by a magistrate, without the consent of the minister, was unlawful.
But Maniklall said at the time Gumede made her complaint she was under investigation by the commission and believed Nzimande was responsible for this.
“She made unfounded allegations as an act of retaliation and to deflect the issues she was facing.”
He said based on the allegations, the commission had authorised an investigation with a twofold purpose: that evidence be obtained to support her allegations, failing which Nzimande’s name would be cleared.
When Gumede withdrew her statement in February 2016 “that should have had the effect of clearing Nzimande’s name”.
“But that didn’t happen. In November 2016, The SAPS was used to obtain authorisation to access his bank accounts and cellphone records after the withdrawal of the complaint.
“The question is, why did the Magistrate’s Commission investigate a withdrawn complaint for the past eight years?”
Apart from not disputing the objective records of appointments of acting regional court magistrates, Nzimande refused to make admissions “in light of the unjustified constitutional violations”.
Apart from the bribery and sexual harassment claims, Nzimande has also been accused of gambling during office hours.
Other charges relate to his “association” through repeated telephone calls with an accused in a human trafficking matter who was appearing before a magistrate “under his control”. One of the dozens of calls lasted 401 minutes.
Two other charges relate to his lack of monitoring Umlazi regional court magistrate Kholeka Bodlani who, it was widely reported at the time, was handing out suspended sentences to child rapists. It is alleged he was informed of these irregularities but did nothing.
He has pleaded not guilty to all charges.
The hearing, at the Point community court, has been set down for 10 days.
Some charges are linked to criminal charges he is also facing and for which he will appear in the Durban high court in May.
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