Durban magistrate guilty of misconduct needs anger management says his advocate

2017-06-21 14:22
Court. (Duncan Alfreds, News24, file)

Court. (Duncan Alfreds, News24, file)

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Durban - Magistrate Stanley Gumede, who has been found guilty by a Magistrate's Commission tribunal of misconduct for impatient, intolerant and bullying behaviour in court, should be given a "cautional reprimand" and, possibly, ordered to undergo anger management counselling.

This was the submission by his advocate Jimmy Howse in argument on what sanction should be imposed on him after he was found to be guilty of nine counts of unbecoming conduct by tribunal chair Desmond Nair.

The charges - including one that he sent a traumatised robbery victim testifying before him down to police holding cells, apparently to "show her where she would go if she did not tell the truth" - date back to between 2004 and 2009 when he was sitting as a regional court magistrate in Pinetown.

He is presently presiding in the civil court in Durban.

In 2013, he was tipped to be the next National Director of Public Prosecutions but the commission refused to give him a letter of "good standing" because of the number of complaints against him from witnesses and prosecutors.

READ: Magistrate who sent a robbery victim to holding cells guilty of misconduct

Conduct

The charges do not deal with the merits of any cases be presided over, but rather with his conduct in court.

The commission's representative at the tribunal, identified only as Mrs Van Rensburg argued that Gumede should be fired.

"Throughout this process he has not accepted any responsibility for any wrongdoing," she said in her submission to the tribunal.

"In fact, he had gone so far to suggest that a former regional court president - who attempted to intervene in the ongoing dispute between Gumede and the prosecutors at Pinetown - was "conniving against him.

"If you do not accept responsibility, how can you be taught that what you are doing is incorrect or how are you going to benefit from training intervention?

"Magistrates are supposed to treat people with dignity and courtesy… he treats people with disdain, bullies them, treats them with impatience and is not able to recognise that the administration of justice will suffer."

Van Rensburg said that the witness who had been taken down to the cells, and another one who was threatened with the same fate, had both been severely traumatised.

"A warning is totally inappropriate. Counselling, training, or attendance at programmes - Mr Gumede has been doing this work for 16 years without any insight into what he is doing incorrectly. Without that acknowledgment, how will these help?"

'Nothing new'

Howse said it was untrue that his client was in denial.

"He accepted every single thing that was said in the transcripts. He just gave reasons as to why he said those things."

He said Van Rensburg was assuming that he had been conducting himself in a similar fashion in each and every matter - "thousands of them over 16 years" - and that he was not capable of rehabilitation.

"The presumption must be the other way: That in all other matters bar these nine, he has dealt with them properly," Howse said.

He also argued that on a virtual daily basis magistrates committed irregularities by entering into the arena and acting inappropriately.

"This is nothing new… and some of the conduct which is being impugned in review and appeal proceedings is arguably more serious that what Mr Gumede has committed here.

"But I do not know of any other disciplinary process arising from those. This really is a first. Does one set the precedent of dismissal? It will determine how magistrates conduct themselves and they need to be free to exercise judicial discretions without looking over each shoulder."

He described the relationship between Gumede and the Pinetown prosecutors as "toxic" - for which he could not be solely blamed - and that he had now been removed from that situation.

"The inference must be that he has a clean state," he said.

In summary Gumede was convicted of:

  • Irregularly dictating to a prosecutor as to which witnesses he could call and not call and then refusing the prosecutor a chance to cross examine.
  • Sending Sookraj  - a robbery victim whose son had been brain damaged during the incident - to police cells "for not telling the truth" and then insisting that her husband testify even though he was too traumatised because of what had happened to his wife.
  • Making unbecoming remarks to a witness while he was testifying and "unduly cross-examining him".
  • Threatening another witness that he would lock her up.
  • Threatening a witness that his evidence was a "distortion of the truth" and he would be punished.
  • Constantly interrupting three witnesses in one trial, engaging in argument and making "uncalled comments about police officers".
  • An abuse of power, using the court as a forum to air his personal grievances and attack the integrity of the prosecutor.
  • Displaying untoward behaviour to an advocate (who left in tears).

The hearing has been adjourned until July for further evidence on sanction and the ruling.

Read more on:    durban  |  judiciary

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