Judge Mngqibisa-Thusi cleared of gross misconduct charges

But tribunal finds that it is gross negligence to fail to deliver 27 judgments within accepted time-frames

• A Judicial Conduct Tribunal has cleared Gauteng High Court Judge Nomonde Mngqibisa-Thusi of gross misconduct, which could have seen her removed from office.
• The charges related to her failure to deliver 27 judgments within accepted time-frames.
• The judge said she was suffering from depression and experiencing “ancestral callings”.
• The tribunal has found her guilty of misconduct and grossly negligent and has recommended to the Judicial Service Commission that she be subjected to remedial steps.

A Judicial Conduct Tribunal has cleared Gauteng High Court Judge Nomonde Mngqibisa-Thusi of gross misconduct, which could have seen her removed from office.

Instead the tribunal has said she is guilty only of misconduct and of being “grossly negligent in breach of the Code of Judicial Conduct”, for failing to deliver 27 judgments within accepted time-frames.

But the tribunal’s recommendations – that she be subjected to “remedial steps” in terms of the Judicial Service Commission Act instead of being impeached – still has to be considered by the Judicial Service Commission (JSC), which has the power to either accept or reject the report.

Judge Mngqibisa-Thusi was facing charges of gross misconduct, misconduct or incompetence/incapacity. The complainant was her boss, Gauteng Judge President Dunston Mlambo.

Earlier this year the tribunal, chaired by retired Constitutional Court Judge Chis Jafta, heard the evidence of Mlambo and Judge Mngqibisa-Thusi. It also considered two expert reports she handed in, one from a psychologist and the other a traditional healer.

The tribunal handed down its ruling at the end of April but it has only now been made public.

In the ruling, the tribunal said Judge Mngqibisa-Thusi had justified her conduct by contending that from 2015 to 2020 she faced a number of health challenges and had “strange visions and dreams”.

“She realised she was suffering from depression which she attributed to her son’s addiction to drugs and his criminal behaviour.

“The visions and dreams were attributed to an ancestral calling she has had since childhood and which she had resisted owing to her strong Christian beliefs.”

Judge Mngqibisa-Thusi said she would feel internal tremors and visualise flashes of shadows, sometimes in court. On one occasion, she made a strange sound that caught everyone by surprise, including herself. She felt so embarrassed that she adjourned the proceedings to collect herself.

After that episode in court, she managed the condition by adjourning proceedings, going back to her chambers and taking snuff to calm herself down. She would drink water to stop belching.

The symptoms also had a devastating effect on her social life.

“Commendably, she was able to perform her judicial duties effectively. The exception was her accumulation of reserved judgments which kept piling up,” the tribunal said.

A clinical psychologist eventually diagnosed that she had Post Traumatic Stress Disorder and depression.

She also saw a traditional healer and began a journey of African spiritual awakening.

“It was common cause that the Judge President was not informed about the reasons for delays in handing down reserved judgments and he only learnt for the first time, about her health challenges, when he read her reply to the complaint,” the tribunal said.

“He said he had an open door policy. And it came as a surprise that he was not previously informed.

“He was visibly distressed by the process of laying a complaint and having to testify against one of the judges in his division and participate in a process which could result in the judge being removed from office,” the tribunal said.

On the issue of incapacity, the tribunal said the constitutional provision on this issue had to mean a permanent inability to perform judicial functions, not a temporary incapacity.

There were times when Judge Mngqibisa-Thusi was able to perform her duties and her mental health had now improved.

She was also not guilty of gross incompetence.

Referring to the charge of gross misconduct, the tribunal said she had not taken any corrective steps to avoid the backlog of reserved judgments, had ignored emails from attorneys and from Mlambo and that she should have approached Mlambo for time to write the judgments.

This made her guilty of being grossly negligent in violation of the code.

This was misconduct, but not gross misconduct.

Apart from her depression she had “spirituality challenges which had a debilitating effect on her”.

“The issue of African spirituality cannot be tossed aside or discarded when evaluating the seriousness of her conduct. She is an African first and when she became a judge, she did not lose her identity and heritage. African spirituality is common among African communities. It does not cease to exist when one becomes a judge,” the tribunal said.

“The difficulty here is not the rejection of African spirituality, but her failure to raise the issue with the Judge President.”

The tribunal noted that Judge Mngqibisa-Thusi had managed to “calm herself” and perform her functions. At present she had no outstanding judgments “largely due to the fact that she is receiving health care for her mental condition and has embraced African spirituality by becoming a faith healer”.

The evidence also did not show the loss of public confidence in her ability to do judicial duties.

The tribunal said her gross negligence did not warrant her removal from office. “[O]n the contrary it attracts remedial steps as listed in the Judicial Service Commission Act”. These include training or counselling.

Only the JSC had the power to impose those remedial steps.

Published originally on GroundUp.