Reprimand for Limpopo's top judge

Limpopo’s top judicial appointment, Judge President Ephraim Makgoba, is to be reprimanded for actions “unbecoming of a judge”. An appeal committee of the Judicial Conduct Committee (JCC) found that he had acted in an improper way when he phoned and intimidated a Polokwane-based advocate in 2016.

In a verdict delivered last Friday (11 May), the chairperson of the appeal committee, Judge Raymond Zondo, gave the background to what had led to a complaint being filed against Judge Makgoba. It started when advocate Tsundzuka Kevin Maluleke asked for an urgent application to be heard in the Polokwane High Court on 17 May 2016. Advocate Maluleke represented Limpopo Legal Solutions, an NGO acting on behalf of mostly marginalised groups. The NGO wanted to stop Eskom from cutting the power supply to four Thohoyandou-based tenants.

The application was set down for a hearing at 14:30 in the Limpopo Provincial Division of the High Court (in Polokwane). Judge Makgoba is the Judge President of both the Limpopo Division and the Thohoyandou Local Division of the High Court.

Shortly after 10:00 that morning, Judge Makgoba phoned advocate Maluleke, questioning him about why the matter was to be heard in Polokwane and not in Thohoyandou. The judge also questioned the legitimacy of Limpopo Legal Solutions, allegedly accusing them of having an agenda to “milk State institutions.” Maluleke alleged in his complaint that the judge told him:

“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 (I) will inform other judges to deal with these Limpopo Legal Solutions.”

For a variety of reasons, the urgent application was not heard on the 17^th. Maluleke stated that he felt traumatized by the events and did not feel that he could continue representing his client. The hearing was also moved to another court room (without his knowledge) and struck from the roll after the legal representatives of Limpopo Legal Solutions failed to appear. Maluleke subsequently laid a complaint at the JCC, claiming that Judge Makgoba had acted in an unprofessional manner.

In his response, Judge Makgoba admitted that he had phoned the advocate, but said this was to provide some guidance, especially seeing that the Limpopo Provincial Division was a new division. Judge Makgoba said that he realised that there was a need to guide some practitioners in respect of High Court practice. By his providing guidance, the possibility of the application being dismissed on technicalities could be minimized, the judge stated.

Judge Makgoba stated in his response that the conversation became heated, as Maluleke clearly did not appreciate his guidance. He then told Maluleke that, in all fairness to him, he would no longer be hearing the matter as he already had his own “misgivings on the matter”. “My last words to him was that such hostility will be dealt with within the legal framework and professional ethics,” Judge Makgoba stated.

Advocate Maluleke’s first complaints against the Judge President did not result in much. The members of the first JCC considered it to be frivolous and lacking in substance and it was dismissed. Maluleke then turned to the appeals committee, asking them to consider the complaint.

Judge Zondo, in his ruling, describes the complaint as two-fold. The first part deals with the fact that a judge had phoned an appellant instead of dealing with matters in an open court. The second issue concerns the threatening tone of the call.

Although it is generally accepted that it is not proper for a judge to speak to a legal representative prior to a case being heard in open court, Judge Zondo said that this was not, in principle, wrong. He highlighted circumstances where a judge might feel it is necessary to contact a lawyer and address specific, mostly technical, issues. “The judge must not in any way represent that he or she has prejudged the matter or issue,” he said. Judge Zondo also felt that, in cases where judges felt the need to contact parties prior to a hearing, this should preferably be in writing and all parties should be included in the communication.

Judge Zondo was very critical of Judge Makgoba’s utterance of the words that he would “deal with” advocate Maluleke and Limpopo Legal Solutions. Judge Makgoba was asked to clarify what he had meant with these words. In his reply, Judge Makgoba said he had meant that he would deal with him (advocate Maluleke) by way of a costs order, and in a professional capacity, he would lay a complaint of unethical conduct against him.

“The respondent (Judge 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 and the appellant should not have conducted himself like that,” Judge Zondo said.

The appeal committee found Judge Makgoba guilty of conduct unbecoming of a judge and ordered that he be reprimanded. Judge Makgoba was given 15 calendar days to make arrangements with the office of the Deputy Chief Justice to enable the appeal panel to carry out the reprimand.

Judge Zondo chaired the appeal committee and the other two judges on the panel were Judge Phineas Mojapelo and Judge Patricia Goliath.

News - Date: 19 May 2018

Anton van Zyl

Anton van Zyl has been with the Zoutpansberger and Limpopo Mirror since 1990. He graduated from the Rand Afrikaans University (now University of Johannesburg) and obtained a BA Communications degree. He is a founder member of the Association of Independent Publishers.

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