South Africa: Judge’s Conduct Embarrassed Me, Judge President Tells Tribunal

The “gross incompetence” of Pretoria High Court Judge Tshifhiwa Maumela embarrassed Judge President Dunstan Mlambo because it led to a general distrust of the justice system, Mlambo testified on Monday.

Giving evidence at the Judicial Service Commission’s tribunal probing gross misconduct and gross incompetence charges against Maumela for delays in handing down judgments, Mlambo repeatedly stated that he was “embarrassed” that it had happened under his watch.

He said Maumela had “generally” ignored his messages and phone calls and, apart from once claiming that his laptop had “crashed”, had never given any explanation why he did not write judgments timeously.

“I do not want to sit here as a complainant … But it’s my belief that judges must do the work that they took an oath and signed up to do,” he said.

Maumela is accused of not meeting the benchmark of handing down reserved judgments within three to six months (depending on the circumstances) in 52 matters since 2013.

In two cases highlighted during Mlambo’s evidence, judgment took five years. In one of those, the plaintiff in a medical negligence claim died before the ruling was handed down. In the other, which was not complex, Maumela eventually produced a nine-page judgment

Asked by evidence leader Adrian Mopp whether he usually advised litigants to complain to the JSC directly, Mlambo said that was so.

“It was never my intention to be a complainant against a judge. We are colleagues. But lawyers don’t want to complain. They say they are not prepared to do so because they practise in the division and don’t want to be victimised.

“When the (reserved) judgments built up, I decided to be bold and lay the complaint myself.”

Mlambo said Maumela would promise to hand down judgments on certain dates, and then just not do so, even though the litigants had hired counsel to appear on that day.

There were also occasions when he adjourned part-heard criminal matters to recess. The parties would arrive at court – in one instance an advocate had flown up from Cape Town – but Maumela did not show up.

As a senior judge, Maumela had a light workload compared to other judges, mainly presiding over criminal trials.

Mlambo said the first time Maumela raised the issue of “ill health” was when he asked for special sick leave.

At the time he was hearing the trial of the men accused of the murder of soccer star Senzo Miyewa. He was then suspended.

Drinking tea

Mlambo said Maumela was never meant to hear the matter. Deputy Judge President Aubrey Ledwaba had instructed that he should only do the pre-trial case management.

“Myself and Judge Ledwaba had agreed that he was not to do the trial and he was told to revert to us once the pre-trial was completed. That never happened. He decided to go straight into the trial and hear evidence. By that time the horse had bolted.”

“Even the Chief Justice called me. There was an allegation that he was drinking tea during the proceedings. I called him about it and he said he had a condition that he has to drink warm liquid. “

“But he was never meant to hear the matter. He had demonstrated to me, as his head of court, that he was prone to being incompetent. And then he did not comply with the directive.”

Mlambo said in his opinion, Maumela was guilty of gross incompetence and gross misconduct.

“He is in the top ten of senior judges in the division … I still don’t know why he reserved these judgments for so long. The health reason came in 2023. It was never raised before.”

“When litigants wait for judgments, it means the justice system is not working. Writing judgments is our existential reason for being judges. He has failed, and has created disrepute for the judiciary.

“I don’t enjoy sitting here, but when a judge doesn’t pull his weight I, as JP, have to make sure I take steps to correct it.”

The tribunal has ruled that the evidence of Maumela will be in camera.

However, during cross examination, Advocate Ghandi Badela, for Maulema, said his client would say he had not case managed the Miyewa trial, the trial had been allocated to him and the parties had arrived at his chambers and said the case was ready to proceed.

Mlambo retorted: “Are you saying I am lying?”

In essence, Badela said Maumela, when he gave evidence, would say that he was overloaded with work, that he had lost files when his computer crashed, that he sometimes had “conflicting court schedules” and that he had suffered a stroke in 2020.

Mlambo said he was not aware of the stroke “because he (Maumela) did not tell me”. He was not even aware that Maulema was off work, if he was.

He said Gauteng judges are overburdened. That is why even before the short-listing process, candidates had to act as judges for two full terms “so they understand what they are getting into”.

The tribunal’s members are Judges Chris Jafta and Dennis Davis, and Advocate Nasreen Rajah-Budlender. It will sit until the end of the week.

If found guilty, Maumela could face impeachment.