Pretoria - Controvertial former North Gauteng High Court Judge Ntsikelelo Poswa has turned to the court in an attempt to stop the Judicial Service Commission (JSC) from going ahead with a tribunal to investigate complaints of impeachable misconduct against him.
In his application before a full Bench (three judges), counsel for Judge Poswa said they wanted the JSC barred from ever “going after him”.
This is apart from asking the court to review the decision by the JSC to investigate complaints placed before it in January 2009 by former Pretoria judge president Bernard Ngoepe. The complaints relate to five outstanding judgments which were not delivered by Judge Poswa at the time. The majority of the judgments were outstanding for about a year. In one case Judge Poswa did deliver an order, but gave no reasons for his conclusion.
The litigants laid complaints with Judge Ngoepe, who then handed the matter over to the JSC, which decided to set up a judicial conduct tribunal.
Judge Poswa was only one of several judges against whom complaints were laid about outstanding judgments.
Judge Poswa, who will be 75 in a few weeks’ time, has been medically discharged because of ill health.
Three judges - Judge Neels Claasen and Judge Haseena Mayat, from Joburg, and Northern Cape Judge President Frans Kgomo - were brought in especially to hear Judge Poswa’s application.
The main thrust of the objection against the pending investigation of his conduct is that the JSC is acting in terms of its new rules - which came into effect in 2010.
His advocate, Selby Mbenenge SC, said as the charges were laid in 2009, the old act should be applicable. The JSC was, in terms of the old act, not empowered to set up a conduct tribunal to investigate a judge, he said. He also objected to technical aspects of the complaints laid, stating that it was not done in the accepted format.
Mbenenge told the court that in any event, as things stood today, Judge Poswa had delivered all his outstanding judgments, bar one. He said the judge had a reason for not delivering that judgment. He also had explanations as to why the other judgments took so long to deliver, which included that in some instances the case record went missing. The judges hearing Monday’s application on several occasions said that at the time the tribunal was set up, the judgments were long outstanding. Some dated back as far as 2006 when he was still active on the Bench.
They said the case before them now was to decide on whether to set aside the JSC’s decision to investigate Judge Poswa and not to determine whether he was guilty of any wrongdoing over the judgments.
Mbenenge said ill health also hampered his client in concluding his judgments. This caused Judge Claasen to question how he was able to then prepare “volumes and volumes” of affidavits and statements in launching this application.
Judge Kgomo wanted to know whether Judge Poswa, when he first appeared before the JSC, told it that he was “incapable” of writing any judgments. “What is the duty of a judge? It is to listen to evidence and arguments and to then deliver a judgment,” Judge Kgomo said. Judge Claasen questioned what counsel for the judge wanted to happen with the complaints. “It will be dealt with, one way or another,” he said. But Mbenenge was adamant that under the new dispensation, the JSC could not investigate the judge.
Judgment was reserved.
Earlier, Judge Poswa made headlines when he questioned a paternity test which revealed with 99.99 percent certainty that he was the father of a child, conceived with his former lover. He said there was a 0.01 percent chance he wasn’t the father.
Pretoria News
FOR THE RECORD
On Tuesday, The Pretoria News erroneously reported that Northern Cape Judge President Frans Kgomo was one of the three judges who presided over the application of former North Gauteng High Court Judge Ntsikelelo Poswa.
It was in fact Judge Frans Nare Kgomo of the Gauteng division of the high court who formed part of the full Bench hearing the matter and not Judge Frans Diale Kgomo, as reported.
The Pretoria News apologises to both two judges.