African spirituality on the stand

Tribunal to weigh spiritual journey and delayed judgments

● The “question of African spirituality must be put on the judicial agenda”, traditional healer and spiritual leader Gogo Aubrey Matshiqi told a judicial conduct tribunal investigating the possible impeachment of Gauteng judge Nomonde Mngqibisa-Thusi.

Matshiqi’s evidence was summarised in written submissions to the tribunal’s panel. The oral hearing, in which Matshiqi testified, was held partially behind closed doors to protect her privacy. However, the written submissions have been released to the Sunday Times with the permission of the tribunal chair, retired Constitutional Court justice Chris Jafta.

Mngqibisa-Thusi faces possible impeachment for 27 long-delayed judgments — some outstanding for more than a year — over about two-and-a-half years. It is the first judicial conduct tribunal dealing with longdelayed judgments as a possible basis for impeachment.

But it is also the first time a judge has defended herself against possible impeachment by relying on a spiritual calling and mental health challenges. In written submissions, Mngqibisa-Thusi’s legal representative, Gauteng judge Gcina Malindi, referred to a global survey that explored the links between judges’ wellbeing and judicial integrity. Malindi said the survey found that 92% of judges are “subjected to stress occasioned by excessive workloads” and 68% of them feel that talking about it is “taboo”.

On top of these, the summary of the evidence in the written submissions reveals that during the relevant period, a wide range of personal circumstances proved challenging for Mngqibisa-Thusi. Her husband got Covid-19. Her mother fell ill and eventually died. Her son struggled with addiction. She broke her elbow and wrist, the one that she used for writing.

Malindi quoted from another article in a journal that said women judges were “particularly prone to stress ... exacerbated by, inter alia, personal factors, but primarily family responsibility which must be balanced with their responsibilities and duties as a judge, which many male judges never experience, this amounting to a level of corollary gender bias”.

In the evidence summarised in the written submissions, Mngqibisa-Thusi and Matshiqi revealed that she had been struggling with a spiritual calling since the age of nine but had resisted it because of her strong Christian beliefs. As a result, she had periods in which she suffered from “migraines, visions, nightmares, disorientation and mindlessness”, which had affected her work.

But she had now “fully recovered from the debilitating challenges that prevented her from fulfilling her responsibilities”, said Malindi, and would be able to cope in future. A similar prognosis was reached in a report by a clinical psychologist in relation to her diagnosis and treatment for post-traumatic stress disorder (PTSD), according to Malindi’s submissions.

Matshiqi argued that while the constitution said South Africa belonged to all who live in it, in reality it “belongs to those who conquered her, which has imposed a social, cultural and spiritual reality in which a numerical minority has become a cultural majority whose ways of being, seeing and doing ... have become the dominant reality”.

The problem, from Gauteng judge president Dunstan Mlambo’s side, was that she had never said anything to him about this. If she had, he could have helped by alleviating her

workload. The written submissions revealed that Mlambo told the tribunal he did not know why she had not approached him directly “as he grew up in an African society and members of his family had gone through [similar] issues ...

“He feels bad that Mngqibisa-Thusi was of the view that he would stigmatise her and break her confidentiality.”

But, said the submissions from the evidence leader, Mlambo also said she “had a responsibility to seek assistance”.

“A judge’s fear of embarrassment or shame was [not] sufficient reason not to disclose his or her challenges,” said the evidence leader in summarising Mlambo’s evidence.

Evidence leader Adrian Mopp’s submissions set out the details of some of the delayed judgments: one was a Road Accident Fund claim, after the submission of which the claimant had to take out a loan while he was waiting for her order, which took more than a year. Another was a case where, by the time the judgment came out, it was pointless because the defendant’s financial position had deteriorated so much that the plaintiff was unable to recover anything.

Malindi’s submissions said that the fear of being stigmatised was a real one for Mngqibisa-Thusi: “It is suggested that her failure may mean that she is not bona fide in her defence, which ... is raised opportunistically when she is facing removal as a judge,” he said.

Stigmatisation resulted in a sense of being different, based on the belief that no-one else has had such an experience and that others would reject or discriminate against a person who had or has one. “Thus guilt, fear and shame are incidental dynamics,” he said. He quoted from justice Edwin Cameron’s writings on the internalisation of stigma and shame when he contracted HIV/Aids.

“Mngqibisa-Thusi testified at length about how she internalised stigmatisation, shame and self-isolation,” he said. Though it was suggested to her that, as a judge, she was in a powerful position to disclose and embrace her spirituality, the example of Cameron showed that it was a matter of “the readiness of the concerned individual”, said Malindi. In any event, she had spoken to two acting deputy judge presidents, though they were not in a position to alleviate her workload as Mlambo would have been.

Malindi submitted that Mngqibisa-Thusi should be cleared of all misconduct. At worst, she should be reprimanded or given a written warning.

Mopp, however, said there were grounds for impeachment: “Her reluctance ... revolved around her own fears about what others would think of her. With respect, the respondent placed her own considerations or self-interest above the consequences her conduct had on litigants who were waiting for their judgments.

“In so doing, she also failed in her professional duties as a judge,” he said.

The respondent placed her own considerations above the consequences her conduct had on litigants who were waiting for their judgments ... she failed as a judge Adrian Mopp evidence leader