Acting judge in hot water over paternity rowComment on this story
Durban - A Durban magistrate who has refused to acknowledge paternity in a child maintenance dispute will no longer sit as an acting judge in KwaZulu-Natal.
On Wednesday, regional court magistrate Sibusiso Msani was interviewed in Cape Town by the Judicial Service Commission and was questioned by Justice Minister Jeff Radebe about his refusal to pay child maintenance.
He was one of nine legal professionals and five magistrates who were shortlisted to fill three vacancies as judges. In the end, his was not one of the four names recommended to the president to be appointed to the KZN high court.
A reliable source in the Justice Department confirmed that Msani had been asked to step down from an acting position on the KZN Bench and to resolve the child maintenance matter.
Msani has previously presided over high-profile criminal cases, and dealt with the tax fraud trial of Shauwn Mpisane.
At the start of Msani’s interview on Wednesday, Chief Justice Mogoeng Mogoeng raised the paternity dispute and Msani conceded he had not gone for a second DNA test, but had applied for court postponements, the Times reported.
Radebe was quoted as saying: “There is no hope in hell that another test will prove otherwise” as the first DNA tests had proved paternity at 99.9 percent.
“Science is not voodoo or magic,” Radebe said.
On Thursday, when asked by The Mercury for his comment, Msani referred queries to the commission and then hung up.
He did not answer his phone again or respond to text messages.
However, Msani was quoted as saying that the mother of the three children was a “difficult person”, who was receiving support grants for three other children who were not hers, and was also the recipient of a disability grant “when she is healthier than all of us”.
Asked whether the commission would take the issue further, a spokesman, advocate Dumisa Ntsebeza, said there was no formal complaint before it against Msani.
However, the question the commission had put to Msani was whether he had taken any steps towards resolving the matter and whether he did not believe that it was an “issue”.
“Leave the law aside, from an ethical perspective,” Ntsebeza said.
“Judges should be the ones who assist when you complain about maintenance. I can’t say now that the commission decided for that reason not to forward his name (to the president to be appointed).”
Ntsebeza said he had no knowledge of Msani’s name being removed from the list of acting judges.
The secretary of the Magistrates’ Commission, Danie Schoeman, said the body could only enter the fray if the magistrate was found guilty of refusing to comply with a child maintenance order.
The defiance of the court order would be reported to the commission, which would immediately set about investigating.
Schoeman said the commission would view such a transgression “in a very serious light”.
However, he was unaware of a formal complaint lodged against Msani.
It was up to the commission’s ethics committee to decide if there was a basis to bring misconduct charges against a magistrate. If a magistrate was found guilty of misconduct, it was within the power of the commission to recommend to Parliament that the magistrate be removed.
Justice Department spokesman Mthunzi Mhaga could not be reached for comment.