The appeal panel of the Judicial Conduct Committee (JCC) has ordered a probe into the behaviour of a labour court judge accused of misconduct in his handling of a dispute between energy company Sasol and a former employee.
Former Sasol employee Andile Maseko lodged a complaint against Judge Anton Steenkamp, accusing him of ignoring written submissions in his labour dispute with Sasol, allegedly lying about not receiving the documents and reaching an unfair judgment in favour of the company.
The complaint arose out of a protracted dispute between Maseko and Sasol about what Maseko said was his unfair dismissal.
Maseko’s application in court was dismissed by Steenkamp, who ordered that Maseko may not litigate further against the company until he had satisfied the costs orders against him in his previous cases against the company.
Steenkamp also said in his judgment that he had not received further written submissions from Maseko and his lawyers, a claim the disgruntled employee denies.
“The judge is lying when he says that he didn’t receive anything from my lawyers. This is serious misconduct … the emails were sent on the 10th, 11th and 12th of August 2016,” Maseko claimed in his submissions to the JCC.
Steenkamp, however, says he checked with his assistant, his associate and the registrar’s office, all of whom said they had no record of Maseko’s submissions to date. He has asked that forensic information technology specialists be called in to prove whether Maseko’s claim to have sent the emails is true.
“To suggest that I would record in my judgment that I hadn’t received those submissions when the facts were to the contrary would mean that I would be recording an untruth, [which is] both an absurdity and an insult to my integrity as a judge and a human being,” he said in his response to the JCC.
He said that Maseko’s application “was the latest in a litany of applications” in the Labour Court, the Labour Appeal Court, the Supreme Court of Appeal and the Constitutional Court over a period of at least seven years.
“He has failed to satisfy at least five costs orders against him,” Steenkamp said of Maseko.
The Mail & Guardian has seen a decision by the Judicial Conduct Committee’s appeal panel — comprising Gauteng deputy judge president Phineas Mojapelo, deputy chief justice Raymond Zondo and Cape high court judge Patricia Goliath — that there should be an inquiry into Steenkamp’s conduct under section 17 of the Judicial Service Commission (JSC) Act.
This section of the Act refers to complaints of conduct that — if it were proved to be true — would be “serious” but “nonimpeachable”.
“The charge that a judge is lying is a serious one, which, if established, may have far-reaching consequences,” said the panel.
The panel also drew attention to the fact that Steenkamp had made a follow-up inquiry with Sasol’s lawyers before reaching his judgment, asking them if they had received submissions from Maseko’s representatives, but did not reach out to Maseko’s legal team to ask where the submissions were.
“As we know, he [Steenkamp] communicated with one side only: Sasol’s legal team. It is possible and tempting to make a decision and a finding based on the available evidence and the admitted failure of the judge to communicate with both sides … That conclusion would, however, leave gaps of information,” the panel said.
Yet Steenkamp said he had only reached out to Sasol’s attorney before making his decision because he was responding to an earlier email.
“I simply responded to her earlier email, indicating that she and her counsel would not file further submissions. Having already ascertained from the court staff that Mr Maseko had not delivered further submissions, I merely did so ex abundante cautela [to be extra cautious],” he said in submissions to the JCC.
“There was no obligation on the court to reach out to them [Maseko’s lawyers] because it was incumbent on them that they make sure they file their submission to me and also make doubly sure that they send something to the court,” he told the M&G this week.
He said he was confident his version of events would be found to be true in the inquiry.
If found guilty under section 17, Steenkamp could be given a written warning, ordered to compensate the complainant or reprimanded.
Maseko told the M&G this week that he believed Steenkamp was guilty of gross misconduct and ideally wanted to see him impeached, as provided for by the Constitution in cases where gross misconduct is found.
“Steenkamp has got to be fired but that is something I’ve got no power [over]. The JCC has got to do its job.”
Yet, noting that the JCC had ordered an inquiry under section 17 of the JSC Act, Maseko said he
would realistically only seek an apology and compensation from the judge.
“I want to move on with my life and the way to move on with my life is when the JCC does what the law says it must do. They must get Steenkamp to apologise to me and give me the appropriate compensation.”
JSC secretary Sello Chiloane said that the nature of the complaint would inform the committee’s decision on remedial action, should this be required.
He added that this was not the first case of nonimpeachable misconduct to come before the JCC.
“There are a couple of cases where the complaint is not strong enough to warrant impeachment; it’s just that some of them have not been published,” Chiloane said.
“So people must not be under the impression that, as soon as a judge appears before the JCC for alleged misconduct, the complaint is always serious enough that it will lead to them being impeached.”
One such case was the stern reprimand given to Limpopo judge president Ephraim Makgoba last month, after he threatened to “deal with” advocate Tsundzuka Maluleke “professionally and legally” during a discussion over a matter that appeared before his court.
The JCC found he had acted in a “manner unbecoming of a judge [and had] in effect threatened to use judicial power improperly”. It ordered that Makgoba be reprimanded.