Judge guilty of misconduct, but gets away with slap-on-the-wrist letter of apology

By Tania Broughton

28 Aug 2024

Judge Nomonde Mngqibisa-Thusi was late with dozens of judgments, but cleared of charges of gross misconduct.

The Judicial Service Commission has found that Gauteng Judge Nomonde Mngqibisa-Thusi is guilty of misconduct for failing to hand down dozens of judgments within reasonable time frames.

But the commission has cleared her of charges of gross misconduct that could have led to her being impeached.

It has ordered her to write a letter of apology to Judge President Dunstan Mlambo and to the attorneys affected by her tardiness within 14 days.

Mlambo is to “formally reprimand her” and issue her with a written warning.

In January 2023, the Judicial Service Commission asked the chief justice to appoint a judicial conduct tribunal to probe allegations against Judge Mngqibisa-Thusi of incapacity, gross incompetence and gross misconduct.

The allegations were based on a complaint by Mlambo that on at least 27 occasions she had failed to deliver judgments within a reasonable time, sometimes for as long as two years.

Did not suffer from incapacity

After hearing evidence, the tribunal said these allegations were “established as a matter of fact”, but found that she did not suffer from incapacity, nor was she grossly incompetent or guilty of gross misconduct.

However, she had taken no steps to avoid the delays when she should have done so.

Although she was ill and had spiritual challenges, these lasted for limited periods and she should have asked Mlambo for time to write the judgments, but she failed to do so, the tribunal found.

She did not take adequate steps to catch up on her judgment writing, instead she had picked up new reserved judgments.

Numerous enquiries were sent by attorneys, but “she did not change course”.

The tribunal said her conduct did not amount to gross misconduct because she had a “spiritual illness” and delivered most of the judgments when she recovered.

“The evidence did not show that the public had lost confidence in her judicial abilities and, in 2023, there were no outstanding judgments,” the tribunal noted.

In considering the tribunal’s findings, the Judicial Service Commission agreed that Judge Mngqibisa-Thusi had committed misconduct, not only in not delivering judgments on time but more specifically in “her failure to report to the judge president” about this.

While Judge Mngqibisa-Thusi submitted that she had reported her issues to the acting deputy judge president, “the commission does not consider this as sufficient”.

Mitigating factors

“The commission finds that there are strong mitigating factors. Firstly Judge Mngqibisa-Thusi suffered from her spiritual illness. Secondly, that illness was temporary. Thirdly, when she recovered from her illness, she was able to complete her judgments. Fourthly, in 2023, there were no complaints about outstanding judgments.”

In considering the sanction, the Judicial Service Commission said Judge Mngqibisa-Thusi was a senior judge and was aware of the applicable code of conduct, the need to deliver judgments timeously and the obligation to report the reasons for not delivering judgments to the head of court.

However, Judge Mngqibisa-Thusi had “begun a process to redress her past conduct”.

While the commission had considered a “financial sanction”, it was decided that this would not be appropriate, noting that in any event, it seemed that the Constitution did not allow for any suspension or deduction from a judge’s salary. DM

First published by GroundUp.

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South Africa

Did not suffer from incapacity

Mitigating factors