The Judicial Service Commission (JSC) gave a terse one-line reason for its decision on Monday that it had cleared Gauteng judge president Dunstan Mlambo in a complaint of gross misconduct by advocate Anthony Brink, saying only that there was “no prima facie evidence” to substantiate his allegations of corruption against Mlambo.
But a look at the submissions made by Brink and Mlambo to the commission ahead of its decision-making may shed light on why it decided as it did. Mlambo made detailed submissions on why Brink’s allegations were “meritless”.
Brink’s submission was a proposal for “a conciliatory resolution in the African spirit rather than a punitive one in the European style”, saying this would be “in the national interest”.
Brink did not detail further what he sought in the “complete and final global settlement”, but said “such resolution will necessarily entail the participation of the justice ministry and the use of a pocket calculator”.
Brink has been fighting a protracted battle since 2009, when Legal Aid South Africa (Lasa) short-listed him for senior litigator post but did not appoint him when all the senior litigator posts were frozen. At the time, Mlambo was chair of Lasa's board. The fight has seen him make several Paia requests, go to the labour court (unsuccessfully), make various complaints to the JSC and fight against being struck off as an advocate (still pending at the Legal Practice Council).
“I just want an end to this whole thing,” he said. But if the JSC “intractably wishes Mlambo JP tried by a tribunal”, then it would mean “total war”, said Brink.
“I’ll be proceeding immediately with my repeatedly declared intention to call international and local attention to the pervasive corruption of the South African judiciary, including and especially in its upper ranks, in multiple appalling cases.”
Notorious in the late 1990s as an Aids dissident, Brink again shot into the limelight in November last year after UDM leader Bantu Holomisa announced a “highly shocking and damaging” intelligence report on judicial corruption “purportedly drafted by Ms Thembisile Majola, the recently resigned director-general of the State Security Agency”.
The announcement by Holomisa caused a mini-furore until it quickly emerged that the report — containing the same allegations that are covered by the Judicial Conduct Committee (JCC) appeal decision — was in fact drafted by Brink and sent to Majola for her “to submit to President [Cyril] Ramaphosa after investigation, verification, and editing at will”. It was widely rubbished in the media as spurious.
Advocate Brink has laid much emphasis on the fact that there is no recordal of the decision to freeze the senior litigator posts. This is an unwarranted elevation of the importance of the position as there were other positions also affected.
— Dunstan Mlambo, Gauteng judge president
Monday’s decision by the JSC followed an earlier one in March by the appeals committee of the JCC. The appeals committee decided that four of eight complaints made by Brink against Mlambo had not been properly investigated by the judge appointed earlier to investigate. There were “many unanswered questions”, said the appeals committee majority.
The appeals committee — by majority — was unwilling to find Mlambo guilty of the “serious non-impeachable” complaints, as they had been categorised, but they still thought further investigation was warranted. On their reading of the JSC Act, they could not send these unanswered questions back to the investigating judge, or investigate them themselves, which left them with one route – to recommend the matter go to a tribunal.
But their recommendation still had to be confirmed by the JSC, which then sought submissions from Mlambo and Brink.
The four complaints the JCC appeals committee wanted further investigated centred two claims by Brink:
- First, that when he took Legal Aid SA to court over his non-appointment, Mlambo “suborned” Legal Aid SA’s attorney to lie under oath and say in an affidavit that Brink had personally turned up at Mlambo’s chambers to deliver a subpoena for him to come to court.
- Second was Brink’s claim that Mlambo had lied to parliament’s justice committee chair and the justice minister about the reasons the senior litigator posts had been frozen — that it was due to financial constraints.
The appeals committee said: “One of the lingering questions is this: if indeed it was Lasa’s official decision to freeze the senior litigator posts, why is there no record of such a decision in the minutes of the relevant meetings of its board or annual reports? ... The very fact that there is no official record of the freezing decision makes it difficult to argue against [Brink’s] characterisation of the decision as 'an illegal, unauthorised, unapproved, off-the-record, corruptly motivated abortion' of his appointment.”
They also questioned why Mlambo had not checked the documents sent to his office by Brink to see the fax transmission markings on them.
In Mlambo’s submission, he said he had been told by his then secretary, Tumi Motswasele, that Brink had personally come to drop off the documents and he “genuinely believed” that he had. Suborning someone to lie under oath required that he knew the on-oath statement was not true, said Mlambo. But he had no reason to doubt what his secretary had told him, he said. He showed the JSC the documents he had received from his secretary, which “had no telefax tell-tale markings”.
He added that Brink had “redacted” from what he had submitted to the JCC those parts of the attorney’s affidavit that showed the history of “the harassment that I and Legal Aid SA executives had endured from advocate Brink”.
“I submit that my reliance on Ms Motswasele’s report was bona fide and informed by my previous experience with advocate Brink,” said Mlambo.
Mlambo set out in detail what his responsibilities were as chair of the board and how decisions were made at Legal Aid SA. The post Brink was applying for was outside of his remit and it was frozen alongside others as part of a broader freezing of posts when there were budget cuts, he said.
“It is correct that in my reports to both the minister and the chairperson of the justice portfolio committee, I didn’t mention that the senior litigator posts, among others, had been frozen. I had no obligation to report on such operational details like that which were not the responsibility of the board … I wasn’t deliberately hiding information from the minister and chairperson of the portfolio committee.
“Advocate Brink has laid much emphasis on the fact that there is no recordal of the decision to freeze the senior litigator posts. This is an unwarranted elevation of the importance of the position as there were other positions also affected,” he said.
Mlambo welcomed the JSC decision and said it was clear Brink was 'trying to extort money' with meritless allegations.
Brink’s submission was emphatic that, on the facts before the JCC appeals committee, its decision was “impeccably correct”, but he dwelt more on his settlement proposal and other “past judicial corruption and dishonesty”. This, he said, “bears recounting here, because my report of it in this appendix portends to what will be very publicly exposed if this matter is not lawfully and equitably conciliated to a complete, final and global resolution”.
His submission made further allegations of dishonesty and corruption against Mlambo as well as several other judges — of the labour court, high court and Supreme Court of Appeal.
His preference was that “this entire sordid matter be settled”. But failing this, he expected a “judicial bloodbath, so to speak, with many dead and bleeding judges on the floor.”
Speaking to TimesLIVE Premium, Brink said: “This thing isn’t over.” He had filed “a searching Paia request testing the integrity of the [JSC’s] decision”.
“Even in the new South Africa where anything goes these days, it’s hard to believe that all members of the JSC dishonestly agreed to sweep my criminal case against Mlambo JP under the carpet in this way,” he said.
He said at a judges’ conference a few months before the JCC appeals committee’s decision and after Holomisa’s statement, chief justice Raymond Zondo had “already come out defending him and implying my charges were junk without having examined them”.
Mlambo welcomed the JSC decision and said it was clear Brink was “trying to extort money” with meritless allegations.
He said Brink had made the same allegations in the labour court and lost. He said he thought the JSC’s rejection of the JCC appeal committee ruling “fortifies my strongly held view that the judicial complaints process should be closed to people like advocate Brink in their attempts to hijack and abuse it”.
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