MWEB Forums: Low standards expected of top AA judges?

Simply staying awake is now just too big an ask? And this is not some small-town hickville district-court magistrate, but the JUDGE PRESIDENT of KZN! There's affirmative-inaction for you, hey?

I was not dozing, says judge
07/12/2006

Pietermaritzburg - KwaZulu-Natal Judge-President Vuka Tshabalala dismissed allegations in Pietermaritzburg High Court on Thursday that he fell asleep during a major criminal trial.

Tshabalala was rejecting an application for leave to appeal by Russel Ngubo, a former prison boss and an African National Congress chairperson.

Ngubo was jailed for 25 years in July last year for the murder of Inkatha Freedom Party leader Nash Ngubane in the Impendhle area and other crimes.

His co-accused and other applicants were: Thamsanqa Memela, a former senior prisons official jailed for 25 years; and Velaphi Khumalo, ex-policeman Thulani Xaba, Zwelihle Dlamini and Dumisani Mshengu, all jailed for 18 years each.

'I even heard his snoring'

In an affidavit Ngubo said: "During... the trial I noticed that the presiding judge (Tshabalala), had fallen asleep on a number of occasions. I was concerned and upset by this.

"I noticed his eyes were closed and that his head was leaning very far back.

"I even heard his snoring on occasion. Sometimes he had a pen in his mouth and when he fell asleep the pen would drop out, (and) this would cause him to wake up.

"On the first occasion... I raised this with my advocate, Gareth Leppan, who said if this happened again he would bring an application for the recusal of the judge... my co-accused and I noticed he was falling asleep again.

"Hence Leppan brought the application as instructed by us.

"The judge heard the application, but dismissed it," said Ngubo.

"I do not think that I had a fair trial as a result of the judge sleeping in court."

Ngubo's counsel, advocate Kobus Booyens SC, said there was also a reasonable possibility that accomplice witnesses were not telling the truth and the accused should have had the benefit of the doubt.

'Application was frivolous'

Opposing the application, State advocate Anton Steynberg said that in the absence of any allegation that the judge was actually asleep, the applicants failed to show that a failure of justice resulted.

Steynberg said the application was "an abuse of process" which would lead to an appeal with no prospect of success, alternatively that it was "frivolous or absurd, alternatively not made in good faith".

The judge said the cross-examination by Leppan was tedious and long and the application was frivolous and not made in good faith.