First published in GroundUp.

Three north Gauteng high court judges — all now retired — have been instructed by the Judicial Services Commission (JSC) to apologise to litigants in matters in which they were slow in handing down judgments.

Judges Ferdi Preller, Ntsikelelo Poswa and Moses Mavundla have also been issued with a “reprimand”.

But the JSC stopped short of ordering that their pay or pensions be docked for three months “and paid to a worthy cause for the training of judges”. 

“The finding of guilt (of misconduct) is enough of a blot on their careers,” the commission said in its recent ruling. “Pay docking would be overkill.”

The complaints against them, laid by Judge Bernard Ngoepe, who has also since retired, were first investigated by a Judicial Conduct Tribunal (JCT).

The tribunal’s recommendation, that they be found guilty of misconduct “not amounting to gross misconduct”, was then considered by the JSC at a virtual meeting in October last year.

In a majority ruling, the commission said the misconduct stemmed from the failure of the three judges to deliver reserved judgments within a reasonable time and the fact that they had outstanding judgments for a “prolonged period”, well over 12 months.

“We are unanimous that the gravity of their misconduct demands that we impose a sanction that involves a combination of remedial steps. And we are unanimous that each of them should be directed to issue an unconditional apology to the Judge President and the litigants involved in all the (delayed) cases,” the finding reads.

“They must also be issued with a reprimand. Whilst an apology satisfies assuaged feelings of the litigants and goes some way to restoring the damage to the respect of the judiciary, a reprimand stands as an official rebuke for their conduct.”

The JSC said delivering judgments expeditiously was fundamental to democracy and delays tarnished the reputation of the courts.

However, the commissioners were divided on whether the judge’s salaries should be docked.

“The majority is not convinced that this is warranted,” they said. “The JCT, in its recommendations, alludes to the fact that the failure to deliver judgements was due to a number of reasons, predominantly, the systematic challenges brought about by the lack of resources, human and infrastructural, and the enormous workload.”

The commission said all the outstanding judgments had now been delivered.

Judge Preller had retired in 2015 at the age of 75 and is now 80 years old. Judge Poswa was medically boarded in 2011 and is also now 80, and Judge Mavundla had retired more recently.

“What purpose would there be in causing them financial harm in their old age? It is not as though they have not otherwise served their country. To insist on a harsher sanction will reflect a lack of understanding of the circumstances under which the misconduct occurred. It would be overkill.”

The commission said what weighed heavily in its decision was that two of the judges were black men who fell into the category of previously disadvantaged individuals.

“They were not privileged to get exposure in matters which they had to deal with. The South African Judicial Education Institute had not yet been established to provide training. It would be a sad day for us not to take this into account.”

The commission said, however, that this would not create a precedent for others because most of the obstacles the three judges faced were no longer commonplace.

“The current crop of judges may accordingly not be in a position to invoke the same mitigatory factors.

“But it is simply too early in our attempt to transform the judiciary to make an example with the very first generation of previously disadvantaged judges.” DM