In what two high court judges have described as misconduct “unprecedented in the annals of SA judicial history”, a magistrate has been found to have allowed an attorney to re-write his judgment before delivery. Even worse, the attorney concerned had appeared for one side in the case that led to the judgment. The magistrate, who has since died, initially wrote a judgment four pages in length, but after the attorney’s re-write this increased to 10 pages. The case involved a civil claim against the minister of police who, on hearing that the final judgment had been written by the attorney representing the opposing parties, asked for the judgment to be set aside by the high court. Reviewing the matter, the judges strongly criticized the magistrate and attorney involved and ordered that the case be heard again, from scratch, by someone from outside the district where the first trial was conducted. They also ordered that the legal practice council investigate the conduct of the attorney involved, and that the magistrate and attorney pay the legal costs of the review on a punitive scale.
Just one sentence into the judgment, and you know this is a legal scandal of significant proportions: Judges Thembekile Malusi and Mbulelo Jolwana said the “misconduct which culminated in this review, to the best of our knowledge, is unprecedented in the annals of the judiciary in this country. We hope it will never be repeated by any judicial officer.”
Those involved were attorney Zoleka Ponoane and Linda Vowana, a magistrate based in the Herschel district of SA's Eastern Cape province, who died before the review was heard.
The two had been involved in a civil trial in the Herschel magistrates court. After the murder and rape of an elderly woman in the Sterkspruit area, a group of people attacked and burnt down the home of someone they suspected had committed the crimes. The police then arrested a small group of people whom they believed were involved in the mob attack, and this group later claimed damages against the minister for unlawful arrest and detention.
When the damages claim was heard before Vowana, the claimants were represented by Ponoane. At the end of the hearing, in November 2012, Vowana reserved judgment. He prepared a draft judgment four pages long and sent an unsigned copy to Ponoane by fax. The two discussed the decision on the phone before the fax arrived.
According to evidence during the review, they agreed on the phone that Ponoane would “re-write the draft judgment”. The judgment, meanwhile, had not been sent to the other side nor was the other side informed that Ponoane would be involved in re-writing the draft.
A few days afterwards, Ponoane sent the re-written judgment – now 10 pages long – back to Vowana who later told the police that he regarded this as the “final, official judgment”.
Vowana signed this version of the judgment and then faxed it to Ponoane, while the minister’s attorney collected a copy of the decision from the court.
Some months later, during the process of payment of the damages award ordered in the judgment, the minister came to hear of the “gross irregularity or misconduct in the writing of the judgment”. A criminal case was opened against the magistrate and the review application was brought.
Before the review was argued, however, counsel for the magistrate and the attorney submitted that the application was launched too late and the court should not agree to hear it. But the judges said the issues were of fundamental public interest. The misconduct was an affront to the foundational values of the constitution and were such a “stain” on the judiciary that the court had to hear the matter.
Judicial officers had to be seen to be independent and accountable and the need for their independence was acknowledged “by all civilized judicial systems”.
In this case, the magistrate had forwarded his draft judgment to the attorney and they had discussed its contents before agreeing that she would write the final version. “He engaged in the dishonourable conduct of abdicating his responsibility” to write the judgment while her involvement in writing the judgment “was the antithesis of impartiality”. She had a vested interest in the outcome as she represented the plaintiffs in the case and it would have been most surprising if her judgment had dismissed the claims of her own clients, said the court.
In his warning statement to the police in connection with a charge of corruption related to the judgment, Vowana said the attorney had told him that she knew of a “better format” for the judgment and they agreed that she would re-write it, in the improved format “without altering the content”. She sent it back to him, re-written, and after he read it, he signed the judgment. “There was no favour or benefit of any kind to anybody in the process,” he said.
The judges noted that the initial four-page draft judgment was not filed with the court but only the signed 10-page version re-written by the attorney. They said these and other “scandalous anomalies” were not explained and that the court could not accept the “innocence” that the two tried to convey. There was clearly “improper conduct” on the part of the magistrate, while the attorney’s behaviour “was equally deplorable” – her version was that she suggested to the magistrate that the decision be re-written “in keeping with modern trends of judgment writing”.
They were “dishonest and crafty”, had “secret liaisons” and saw nothing wrong with what they had done.
“The audacity with which (the attorney) sought to unashamedly explain the inexplicable even when her subterfuge had been uncovered is shocking.”
A comparison between the two versions of the judgment showed that the second version was largely in the attorney’s words. “She assessed the evidence of the witnesses and decided to reject the evidence of the minister’s witness. She further accepted the evidence of her own clients and gave reasons for doing so. The difference between the two documents is pronounced.”
The judges also criticized what the magistrate described as standard procedure: when a magistrate's judgment was ready, it was simply placed in the court file for the parties to collect.
According to the judges, the law required that a trial be conducted in open court – delivery of judgments and orders included.
They said that the two had behaved in a way that was “an unconstitutional, disgraceful, dishonest and unlawful abuse of the judicial authority which the constitution vests in the courts,” and they ordered that the judgment and proceedings in the trial court be set aside. A new trial must now to be held before a magistrate from outside the district. The review judgment was to be referred to the legal practice council to investigate the attorney’s conduct, and the magistrate and attorney were to pay the costs of the application on a punitive scale.
- A Matter of Justice, Legalbrief, 19 February 2019