A Judicial Conduct Tribunal has cleared suspended Gauteng high court judge Nomonde Mngqibisa-Thusi of gross misconduct, gross incompetence or incapacity for long outstanding judgments, finding instead that she was guilty of a grossly negligent breach of the Judicial Code of Conduct.
“While this is a serious misconduct, it falls short of gross misconduct envisaged in section 177 of the constitution,” said the tribunal, chaired by former Constitutional Court justice Chris Jafta. The tribunal’s decision must still be considered by the Judicial Service Commission (JSC), which could confirm or reject it.
Mngqibisa-Thusi was suspended in June 2023 after it was decided she should face a tribunal for 27 long-outstanding judgments, reserved over the period of 2017-2020. The periods they were outstanding “ranged between seven and 27 months”, said the tribunal. Five of the cases took between a year and 27 months to deliver and 14 took between 10 and 19 months, the tribunal was told.
In its report, the Judicial Conduct Tribunal said correspondence from litigants and enquiries from judge president Dunstan Mlambo were unanswered, and in the end, Mlambo laid a complaint with the Judicial Conduct Committee.
The report said Mlambo “was visibly distressed” by the process of laying the complaint and having to testify.
“He even said if the respondent had shared with him the challenges she was facing he could have not laid the complaint against her. If she had responded to his emails and asked to be afforded time to prepare and deliver the reserved judgments, a special arrangement could have been made,” said the report.
It said Mngqibisa-Thusi admitted that she had failed to deliver the judgments within a reasonable time but sought to justify her conduct by saying that, during the relevant period, she had suffered from various health challenges. These included mental health challenges related to her son’s struggle with addiction and an African spiritual calling that was exacerbated by her resistance to it. Her evidence was supported by expert reports from a clinical psychologist and a spiritual healer. Both reports said she would now be able to continue as a judge.
The tribunal — which also included retired judge president of the Competition Appeal Court Dennis Davis and senior counsel Nasreen Rajab-Budlender — said reserving a judgment beyond the following court term amounted to misconduct only when it was done in a “wilful or grossly negligent way”.
Here, Mngqibisa-Thusi was grossly negligent because she “never even once went to the judge president to report her situation. She could not give a sound and cogent reason for this unacceptable conduct on her part.”
While Mngqibisa-Thusi had told the tribunal she was uncomfortable talking to Mlambo about “personal matters”, the tribunal said her failure to deliver judgments “was not a personal matter”. Her behaviour was worsened by her failure to respond to correspondence from attorneys enquiring about judgments.
[Mngqibisa-Thusi] is an African first and when she became a judge, she did not lose her identity and heritage.
— Tribunal
She was “unquestionably ... grossly negligent in her violation of the code”, said the tribunal.
But this was not the end of the matter because a grossly negligent violation of the code did not necessarily amount to gross misconduct under the constitution. The constitution could not be interpreted through the lens of the JSC Act, said the tribunal.
Under the constitution, gross misconduct means “conduct which erodes public confidence in the ability of the judge concerned to perform judicial functions impartially and with integrity. It is misconduct that is so serious as to destroy confidence in the ability of the judge to properly perform his or her judicial duties,” said the tribunal.
This must be assessed by looking at all the evidence, said the tribunal.
Without a reasonable explanation or excuse, long-delayed judgments would be gross misconduct because it would erode public confidence and leave the public “with no option but to resort to self-help”, said the report. It affected litigants’ rights to access to courts.
The tribunal said the issue of African spirituality could not be “tossed aside” when looking at the seriousness of the misconduct. Mngqibisa-Thusi “is an African first and when she became a judge, she did not lose her identity and heritage”. Like other groups, African judges had guaranteed rights to form or join religious associations and practise their religion, said the report.
The “difficulty” was her failure to raise the issue with Mlambo — an African himself, who recognised that judges may go through the African spirituality process and who was willing to accommodate it.
But in Mngqibisa-Thusi's case, the attorneys who gave affidavits to the tribunal said they continued to have confidence in her.
“The examination of the entire evidence does not show the loss of public confidence in her ability to do judicial duties. Consequently we are not convinced she is guilty of gross misconduct,” said the tribunal.
It also found she did not suffer from an incapacity, as her inability to do her job was only temporary. Also she was not grossly incompetent, said the tribunal.
The tribunal decided the kind of misconduct committed by Mngqibisa-Thusi “cannot support her removal from office”. Instead, it warranted other remedial steps set out in the JSC Act — such as an apology, a fine, a written reprimand, counselling or training. These were not for the tribunal to impose, but the JSC to decide, said the tribunal.
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.