The Gauteng High Court, Pretoria, Judge Nomonde Mngqibisa-Thusi was given a lifeline when she was found not to be guilty of gross misconduct for not delivering 27 judgments on time.
The Judicial Conduct Tribunal, however, did find her guilty of misconduct and being grossly negligent in breach of the Code of Judicial conduct, While she will not be removed from office as she is not guilty of gross misconduct, the tribunal did recommend that the Judicial Service Commission subject her to remedial steps.
The allegations against her arose from a complaint lodged by Judge President Dunstan Mlambo. This resulted in the tribunal investigating her fitness to hold office.
Judge Mngqibisa-Thusi was appointed to the high court in Pretoria in 2009 and at that stage she was one of the senior judges in that division.
During 2017 to 2022, she accumulated a long list of reserved judgments. Many attorneys addressed queries to her office as to when the judgments were due to be delivered, but most of the queries were not answered.
Some of the matters were brought to the attention of Judge Mlambo, but yet the judgments were not delivered.
Two of the matters in which judgment was delivered – one after 18 months and the other after 19 months – involved the Road Accident Fund and involved narrow issues of costs.
In October 2020, Judge Mlambo lodged a formal complaint with the Judicial Conduct Committee against Judge Mngqibisa-Thusi. The complaint listed four matters in which judgment was reserved for more than a year, six judgments which were outstanding for more than six months, and 10 matters in which judgments were delivered after periods ranging between seven and 27 months.
In the complaint, Judge Mlambo said “it appears to be an unfortunate norm” for litigants to wait for a long time before receiving judgments from Judge Mngqibisa-Thusi.
In response, Judge Mngqibisa-Thusi did not diminish the seriousness of the charges levelled against her, but she said she faced health and other problems. She said she did try to work through her problems and through her outstanding judgments.
Her evidence and those of her witnesses before the tribunal, was heard behind closed doors, following a request made by her lawyer on her behalf. The main reasons were that the evidence mainly pertained to her health, which included medical evidence.
In its report, which was only recently made available, the tribunal, headed by Justice Chris Jafta, said that the Code of Judicial Conduct regulates the reservation of judgments. It stipulates that a judge must deliver all reserved judgments before the end of the term in which the hearing of the matter was completed.
However, he said, it does not follow as a matter of course that a failure to do so by Judge Mngqibisa-Thusi constitutes misconduct. In taking into account her health and other problems, Justice Jafta said there is nothing to suggest that the violation was wilful.
But, he said, during the entire time that the judgments were outstanding, Judge Mngqibisa-Thusi did not go once went to Judge Mlambo to explain the situation to him. Her behaviour was exacerbated, Justice Jafta said, by her failure to respond to the attorney who inquired about the outstanding judgments.
He said the litigants were seriously prejudice by the outstanding judgments and this could have been avoided if she reported her challenges to the judge president.
Justice Jafta said under the circumstances the tribunal is not convinced that she is guilty of gross misconduct, which would have warranted her removal from office. Instead she is guilty of gross negligence.
He concluded that this matter will be forwarded to the commission so that it can proceed on how to deal with this in terms of the Commission Act.
Pretoria News