Limpopo Judge President Ephraim Makgoba will, as per ruling be reprimanded on conduct unbecoming of a judge by the Judicial Conduct Committee (JCC) of the Office of the Chief Justice of South Africa soon. Added to that the Anti-corruption Movement is planning a march for next month to demand Makgoba’s suspension with immediate effect.
The ruling by the JCC follows a complaint about a statement made by Makgoba during a telephone conversation with local advocate Kevin Maluleke in June 2016. A first instance sub-committee of the JCC considered the complaint and concluded that it had no merit and dismissed it, followed by Maluleke who noted an appeal against the decision which brought the matter before an appeal committee.
The ruling of the appeal committee made on 11 May this year reads that the decision of the panel on the first instance is set aside and replaced with the following: “The respondent’s (Makgoba) conduct in uttering the statement complained of constitute conduct unbecoming of a judge. The respondent (Makgoba) is to be reprimanded. The respondent (Makgoba) is required within 15 calendar days from the date of receipt of this decision to make arrangements with the Office of the Deputy Chief Justice to enable the Appeal Panel to carry out the reprimand.” He has until Saturday to make these arrangements.
On 16 June 2016 Maluleke received a brief to move for an urgent application in the Limpopo High Court on behalf of Limpopo Legal Solutions (LLS) and four others and the matter was set down for hearing at 14:30.
Maluleke received a call from Makgoba the day after at about 10:12 asking why the urgent application had been instituted in the Limpopo Provincial Division instead of the Thohoyandou Local Division, to which Maluleke answered that the Limpopo Division also had jurisdiction in the matter and that it was more convenient for the applicants in the matter.
Maluleke indicated that Makgoba asked him about LLS, a non-governmental organisation whose aim was to promote and protect human rights and access to justice by taking up test cases for litigation as a way of giving communities a voice, because he thought LLS might not have locus standi.
According to Maluleke, Makgoba told him that he had a serious problem with such organisations because they have an agenda to milk state institutions. Makgoba also said as quoted in the JCC ruling: “You are talking rubbish and I am going to deal with you legally and personally in the same manner I am dealing with advocate Tebeilla and his institution and will inform other judges to deal with these Limpopo Legal Solutions.”
Maluleke could no longer continue with the application later that day as he felt traumatised by Makgoba’s behaviour. When Maluleke proceeded to court later his vehicle had a flat tyre and he instructed his attorney to go to court.
He was there on time but the case was seemingly moved to another courtroom without the attorney having been informed and with a no-show Judge George Phatudi struck the case from the role.
Maluleke arrived at court at about 15:00 and asked to see the judge who had dealt with the matter but with no success.
In Maluleke’s statement to JCC he indicated that Makgoba’s conduct was in breach of section 165(3) of the Constitution, which prohibits any person or organ of state from interfering with the functioning of the courts. He further indicated that “a judge should behave in a manner that enhances public trust in, or, respect for, the judiciary and judicial system; a judge should act courteously and respect the dignity of others; and in conducting judicial proceedings a judge should give special attention to the right to equality before law and the right to equal protection and benefit of the law.”
Maluleke also complained that it is unbecoming of a judge to call an advocate and start raising issues that are the subject of a pending case.
Makgoba’s response to JCC
In his response to the JCC, Makgoba stated that his call to Maluleke should be seen against the background that the Limpopo Provincial Division is a new division and he had discovered that there was a need to guide some of the practitioners in respect of High Court practice. He said that he had called Maluleke in order to give him guidance and, thus, avoid the possibility of the application being dismissed on technicalities.
In the ruling Chairperson of the JCC Raymond Zondo indicated that from Makgoba’s reply it is clear that he does not deny that he uttered the statement.
Regarding the call made by Makgoba to Maluleke the JCC had to question whether it is permissible for a judge to call a practitioner and raise with him on the phone issues relating to a matter that is to be heard in court and therefore not wait to raise those issues in open court. In this matter the call was found to be permissible.
Regarding the above quote by Makgoba, the JCC ruled that: “This would have given the appellant (Maluleke) the impression that he would somehow be prejudiced in his representation of LLS and that he would be met with a uniform approach from the judges of the division. ….there was something wrong with threatening to deal with him (Maluleke) legally to the extent that that was a threat to make a costs order against the appellant (Maluleke). The respondent (Makgoba) intended to make that costs order against the appellant without affording him the opportunity to be heard. That was conduct unbecoming of a judge….”
As quoted in the ruling the JCC stated that Makgoba is guilty of conduct unbecoming of a judge.
“In effect he threatened to use judicial power improperly. We bear in mind that there is no record that the respondent has ever been found to have committed judicial misconduct. Furthermore, the appellant did also speak to the respondent in a manner that may have contributed to the atmosphere that resulted in the respondent uttering the statement complained of. We are of the opinion that the respondent should be reprimanded. He will be called upon to present himself before this committee to enable the committee to carry out the reprimand.”
Makgoba did not want to comment on the matter and referred the publication to Office of the Chief Justice Spokesperson Nathi Mncube who referred Polokwane Observer to the JCC Spokesperson CP Fourie. He only referred the publication back to the Office of the Chief Justice.
Story: RC Myburgh