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

2017-06-20 16:17
Magistrates court. (Duncan Alfreds, News24)

Magistrates court. (Duncan Alfreds, News24)

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Durban - Stanley Gumede, the magistrate once fancied by President Jacob Zuma for the job of national director of public prosecutions (NDPP) was found guilty of nine charges of "unbecoming conduct" in a ruling in which he was labelled an "impatient, intolerant and almost bombastic" bully.

Among his transgressions - as found by a disciplinary tribunal set up by the Magistrate's Commission - are that he frequently  "flouted the threat of imprisonment" and, in one matter, sent a terrified robbery victim down to holding cells below the court while she was testifying.

In that matter, transcriptions reveal, he accused the witness, a Mrs Sookraj of making "three conflicting statements" to which she replies: "But I am not talking a lie."

Gumede then said to the court orderly: "Take her and show her where I will send her, Inspector. I want him to show you where I will keep you now if you are wasting my time."

When she returned, Gumede said: "Did you see that place?"

The record shows that she was tearful and crying.

READ: Zuma's new graft busters

Complaints

The charges date back to 2004 to 2009 when Gumede was a regional court magistrate at Pinetown. He was subsequently transferred to Durban where, a source said, he now only hears civil cases.

In spite of the finding of guilt in May by tribunal chairperson Desmond Nair, the chief magistrate of Pretoria who was assigned to hear the matter at the Durban Magistrate's Court building, he is still working.

Sanction is expected in July.

Gumede "received the call" about his availability for the post of NDPP in 2013. But his appointment was never announced after media publicity about complaints against him and the Magistrate's Commission refused to give him a letter of "good standing".

Gumede initially faced 12 charges but was acquitted of some.

In summary he 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).

Most of the charges were proved through transcripts of the events.

Axe to grind

Gumede's advocate Jimmy Howse claimed he was just trying to ensure the smooth running of his court and that many of the matters had "suddenly popped up" at the time it was reported that he was to be the next NDPP.

Howse also accused witnesses, including senior prosecutors, of having an axe to grind and suggested to one: "You simply could not care less about Mr Gumede."

Nair, in summarising the evidence, said the Magistrate's Commission had investigated initially 13 to 14 matters. The initial investigator, after speaking to various prosecutors and looking at the transcriptions believed "there were definitely areas which touched upon the independence of the magistrate".

Under cross-examination, she conceded that some of the matters related to judicial independence and a meeting had been held with then Judge President Chiman Patel and it was agreed that matters would be forwarded to the High Court in the normal appeal and review processes.

The chief prosecutor at the time, Amy Kistnasamy, testified that at one stage prosecutors at Pinetown had sent a petition to the provincial director of public prosecutions.

She said when that wasn't acted upon, they refused to be assigned to Gumede's court.

"Advocate Noko [the DPP] was initially reluctant to get involved. But she came and met with them, after a long meeting, she was quite shocked and finally there was a realisation that there was a serious problem."

Kistnasamy said prosecutors complained that he treated them and witnesses with disdain. It was their view that his court had the highest acquittal rate. There was a perception that accused were being acquitted even if there was overwhelming evidence against them.

Judicial discretion

She said numerous meetings were held but Gumede gave the impression that the prosecutors were either not competent or cases were not properly screened.

In his evidence, Gumede - who graduated in 1985 and has been a magistrate since 1990 - said he believed at all times that he was exercising his judicial discretion and knew of "no other matter brought against a magistrate for doing his work".

He said he was always just urging witnesses to "tell the truth".

Nair said judicial independence was of "cardinal importance" but the question he had to ask and answer was: "Does Mr Gumede regularly and blatantly abuse his power by being irrational and grossly unfair?"

He said the code of conduct referred to a magistrate as being a person of integrity who acted with dignity, courtesy and self-control.

In spite of argument by advocate Howse to the contrary, the transcripts, he said, "are clearly indicative when a magistrate behaves in a manner that is bullying, humiliating or intimidating.

"In all the counts, one sees impatience and a certain degree of bullying behaviour. This is underscored by intemperate choice of language and flouting the threat of imprisonment.

"When a magistrate embarks on a series of actions showing intolerance, he or she cannot hide behind judicial independence," Nair said.

"The impression left by his conduct is a very poor one."

Read more on:    durban  |  judiciary

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