Judge reprimanded over scathing Road Accident Fund rulings

• A Judicial Conduct Committee has ruled that while not willful or grossly negligent, Johannesburg High Court Judge Denise Fisher should be reprimanded for judicial overreach.
• The complaint against her was laid by De Broglio attorneys and related to Judge Fisher making adverse findings against them and their expert witnesses in two Road Accident Fund matters.
• Judge Jeremiah Shongwe said in terms of the Judicial Code of Conduct, Judge Fisher should have given them an opportunity to be heard before reporting them to their professional bodies.

A judicial conduct committee inquiry has found Johannesburg High Court Judge Denise Fisher guilty of misconduct in relation to rulings she made in Road Accident Fund litigation.

However, Judge Jeremiah Shongwe ruled that she was not wilful or grossly negligent in her breach of the Judicial Code of Conduct and has ordered that she be issued with a reprimand.

Judge Fisher is known for her strong stance in Road Accident Fund (RAF) litigation but De Broglio Attorneys said she had overstepped the mark in two matters that came before her.

The attorneys complained that she had made adverse findings against them and their expert witnesses, and reported them to their professional bodies, without giving them an opportunity to answer the allegations.

While Judge Fisher was initially cleared of any wrongdoing by Gauteng Judge President Dunstan Mlambo, who said the complaint related to her “judgments” and the JSC was not the correct forum for complaints by unhappy litigants, an appeals committee determined that she should face an inquiry into the merits of the complaint.

This inquiry was in terms of section 17 of the Judicial Services Commission Act which governs inquiries into serious but non-impeachable complaints.

Judge Shongwe was appointed to determine whether the complaint should be upheld and, if so, if it should be investigated by a tribunal at a formal hearing.

Judge Shongwe has now found that there was substance to the complaint but that the breach was not wilful or grossly negligent. He said there was no likelihood that a formal hearing (before a tribunal) would contribute to the debate further and that Judge Fisher should be issued with a reprimand.

RAF cases

Judge Fisher has been taking a strong stance in litigation involving the Road Accident Fund (RAF), keeping a close eye on any signs of maladministration or possibly corruption.

The two cases in point were heard by Fisher in 2021. Both involved claims against the RAF, one by Marilyn Doris Taylor and the other by Hlengani Victor Mathonsi, both represented by personal injury attorneys De Broglio Incorporated.

In the Taylor matter, her attorneys and the RAF lawyers submitted that the RAF had settled for R1.3-million and asked Judge Fisher to remove the matter from the court roll.

In the Mathonsi matter, the lawyers asked Judge Fisher to sign off on an agreed settlement in the amount of R1.75-million.

Judge Fisher refused both requests.

She commented that the RAF was bankrupt and she made findings of impropriety against those involved in the two matters, including the attorneys, the medical experts and the actuary.

She referred all of them to their respective professional bodies and ruled that a copy of her judgment be delivered to the RAF, the Minister of Transport, and the National Director of Public Prosecutions.

De Broglio appealed and in 2023 the Supreme Court of Appeal found in their favour, setting aside Judge Fisher’s orders. The court said Fisher had made findings without any admissible evidence and criticised her for “judicial overreach”.

De Broglio complaint

In its appeal against Mlambo’s initial ruling in its complaint, De Broglio accused Fisher of having “trampled on the parties rights and ignored the basic principle of audi alteram partem (listen to the other side)”.

The appeal came before then Deputy Chief Justice Mandisa Maya and Judges Chris Jafta, Halima Saldulker and Nolwazi Mabindla-Boqwana.

In their ruling, they noted that Judge Fisher had made “adverse and damning findings” against attorneys and their medical expert witnesses, concluding that the attorneys were grossly inadequate, corrupt and dishonest.

The Judicial Code of Conduct states that before commenting adversely on a legal practitioner, the judge must give that person the opportunity to deal with the allegations and to ensure that hearings are fair.

The judges referred the complaint to the Judicial Conduct Committee (JCC) with Judge Shongwe presiding.

In his ruling, handed down last month, Judge Shongwe said Judge Fisher, in response to the complaint during the appeal process, had stated that it centred on two legal questions: whether or not a court was entitled to interrogate the basis of settlement agreements; and whether a court is obliged to notify a person that it intends to refer a matter to his/her professional body for investigation so as to allow such person to be heard.

On the first question, she relied on what she said was a practice directive which was in force at the time.

On the second question, she was of the view that the attorneys had been given enough opportunity to deal with its obligations as legal practitioners.

Judge Shongwe said, “The response clearly shows that she was of the view that there was no clear legal position on the question of giving the other party a hearing before referring the matter to the professional body.”

She had stated: “I did not previously understand this to be the position, especially in the light of the prevalence of such referrals, without notice in our courts at all levels, including the SCA. I made no final finding as to professional misconduct. I simply referenced [undisputed] conduct which I considered warrant referral.”

Judge Shongwe said the issue he had to determine was whether she had breached the Judicial Code of Conduct by failing to give the attorneys a hearing before making adverse findings against them.

“The facts of this matter taken together with [Fisher’s] response, clearly indicates a breach of the code. The attorneys were not given the opportunity to deal with the adverse findings prior to them being made.”

However, he said, while the complaint “had been established”, there was no point in referring the matter to a formal tribunal. He ruled that Fisher must be issued with a reprimand, in writing, within 30 days.