The East London based attorney has twice appeared, unsuccessfully, before the Judicial Service Commission for a position on the Eastern Cape Bench. In October 2014, Thembekile Malusi was chided by Chief Justice Mogoeng Mogoeng about his outstanding judgments, including one which took six months to be handed down because he was “busy”.
Mogoeng, a stickler for efficiency, told Malusi to work more promptly in this regard since “justice delayed is justice denied”, but encouraged the attorney to return if his application was unsuccessful. Another commissioner, Advocate Mike Hellens SC, probably delivered one of the best lines of that sitting when he observed; “Taking too long to write [a judgment] is like eating cold pap on a winter’s morning: you’ve got no feel for the matter at hand.”
Returning in April 2015, for another tilt at judicial appointment, Malusi was confronted about complaints laid against him with the Law Society of South Africa. Malusi told the commission he was unable to shed light on the status of the complaints as he was busy acting at the High Court. Mogoeng responded: “So you don’t know whether you are in trouble or not. How then do we recommend you for the appointment?”
Between 2009 and 2011, Malusi was fined by the Cape Law Society for seven matters involving the contravention of rules. He holds directorships in four companies, including Malusi Transport which has a civil case pending where he is named as a respondent.
In 2003, he was arrested for defrauding the Ngqushwa Municipality after representing its municipal manager and two other employees and later billing the municipality for his services. The matter was dismissed in 2009, with the court of the opinion that there was no evidence he had committed any offence.
Nominated by the Border Branch of the National Association of Democratic Lawyers, Malusi has run his own firm of attorneys for the past 12 years. Prior to that he had worked his way up from serving his articles at B Nduli and Company Inc. Attorneys in 1996 to eventually leaving the company as a director.
He obtained a BA (Law) from the University of Cape Town and an LLB from the University of KwaZulu-Natal (Howard College).
Since 2012, Malusi has spent several stints acting at the Eastern Cape High Court. In Jiba v MEC for Health, Eastern Cape he found the provincial health minister was liable for damages suffered due to the negligence of staff at a Lusikisiki state medical facility. The matter related to a child who appeared to be suffering epileptic fits but was merely prescribed Panado syrup by a doctor. It was later revealed, following trips to both private and public hospitals in Durban (which the guardians could not afford), that the child was suffering from encephalitis and meningitis.
For the second time during this round of interviews by the Judicial Service Commission a candidate broke down and shed a tear.
Attorney Thembekile Malusi had to take a a few moments to compose himself on Friday morning when he was pushed on what appears to be issues of impropriety that refuse to go away.
It emerged during questions by Advocate Mike Hellens SC that a call from the Eastern Cape Judge President to Malusi, urgently seeking him to help out by acting on the Bench the following day, had led to a postponement of a matter he was to appear in as the defendant. The matter relates to a civil case involving one of his companies, Malusi Transport, where he is named as a respondent (see above).
Hellens, after getting Malusi to agree that judges were no different in their societal obligations to any other South African, pressed him on whether he did not think it was improper that the plaintiff had their day in court delayed because “he is a judge”.
Malusi said that he “did not regard himself as being any different because I was a judge… What was uppermost in my mind at the time was to assist”. He later conceded that “in hindsight” his actions would create a bad impression for the judiciary.
Judge President Dunstan Mlambo later advised Malusi that in these instances the “prudent thing to do” was “not to shield behind the office of the judge” but to get time off from the division’s judge president to deal with any personal matters he had pending.
It was when Malusi was pressed by Advocate Ishmael Semenya SC on why he had availed himself, again (this is his third interview), for this round of interviews, rather than allowing the court process to be finalised before returning, that he broke down.
Malusi told the commission that he was “advised that the simplest thing to do was to pay the R140 000 and walk away… But my view is that I would have paid my way to the Bench”.
Asked as to the ideal traits for a judge, Malusi said “good character”, “experienced in the practise of the law”, “someone who is balanced, generally” and someone who is sensitive to the transformation imperatives of this country”.