Mbekezeli: Judge Lekale declined medical retirement

[00:00:00]The Judicial Conduct Tribunal has established by the Judicial Services Commission to assess Free State High Court Judge Lepo Ronald Legale marks a historic precedent in South African legal history. While previous tribunals have evaluated claims of gross misconduct, such as those involving former judges John Hlophe and Nkola Motata, this is the first of its kind inquiry focusing strictly on a judge's medical fitness and alleged physical incapacity to execute judicial duties.

[00:00:32]Let's unpack this with research advocacy officer at Judges Matter, and that's Mbekezeli Benjamin. Mbekezeli, a very good afternoon to you. Thanks very much um for your time. Uh yeah, the mills tend to grind very slowly when it comes to our justice system. But uh I mean, this case goes way back to 2018. What took it so long to get to this point?

[00:00:59]>> Good afternoon.

[00:01:01]Good afternoon, viewer, and good afternoon to the viewers. Um the case itself actually is is just over a year old. But you're quite right that the judge uh has been on sick leave since 2018. And maybe to step back a bit. So, Judge Legale um is a judge of the Free State High Court. He was appointed in 2012. Uh but from around um 2018, he started to feel unwell. And uh he was diagnosed with an eye condition. And that meant that he couldn't see. And so, he couldn't do the job of a judge, which requires a lot of reading. And so, he was on sick leave from 2018 until around 2025, when the Judge President, Judge President Musi, filed a judicial complaint against him. Um he In that complaint, he alleged that the judge, uh Judge Legale, suffers from an incapacity, which means that he is not able of not medically fit to fulfill the offices of a judge. And so, the JSC should take steps against him. And and in terms of section 177 of the Constitution, the step that is available is impeachment and removal from office.

[00:02:14]>> Is that the only step? In other words, could he not have simply produced all the medical evidence um uh required and have that looked at and perhaps only when there's a dispute um should would they then go the route of of of impeachment?

[00:02:36]>> So, that was done, uh Vuyo. So, uh so Judge Hlophe Gcaleka has been submitting uh medical records since around 2018.

[00:02:45]And in 2023, uh Judge President Mkhize said, "Look, you've now been on sick leave for 6 years. And so, the option that is available to me is to is to get you medically boarded." So, in terms of the Judges Remuneration Act, a judge can take um essentially early retirement based on medical grounds. And that early retirement means that the judge obviously doesn't need to go back to work, but he still gets his salary as he would have gotten it had he taken the normal retirement at age 70. So, he was Judge Hlophe Gcaleka was offered that uh option of taking an early exit, and he said, "I can't take it." And the reason why he said that was that he said he had consulted with the traditional healer.

[00:03:30]And the traditional healer said that your condition is temporary. Yes, you can't see now, but there's a possibility that you might see. But, if you take this early retirement, then your condition will be permanent and you'll be permanently blind. So, if you do take this option that they're offering you, then it will lead to the permanent condition and you will never be able to see. And so, for that reason, he declined that offer of an early exit.

[00:03:56]And so, the Judge President said, "Look, if you if you don't take the early exit, then I have no choice but then to initiate the processes with the JSC."

[00:04:05]And that's why in 2025 he filed a complaint of of a judicial incapacity.

[00:04:10]>> So, what the does that JSC process um entail? In other words, what will have to happen now? And how in all likelihood is it going to to to unfold? And who will participate in it?

[00:04:28]>> So, the process of the JSC is the one that we are in right now that started today, which is that the tribunal must investigate the extent of the judge's incapacity. So, first today they heard evidence from the Judge President who explained the process up to him filing the complaint and what motivated him to file the complaint. And what we will hear tomorrow is from Judge Legali himself who will testify. There's a possibility that he might call up either a medical doctor to testify on his behalf, but we don't know. At the end of it, the tri- the tribunal will prepare a report to the JSC. And it is the JSC, the Judicial Service Commission, that is will be made up only of the judges and the lawyers. So, the members of Parliament will not participate in that process. The JSC will then take a decision based on the findings of the tribunal whether the judge should um remain in office, whether the judge should uh maybe take early retirement, or whether the judge should be removed from office through the process of impeachment. And the important thing here to emphasize is that what the the main emphasis that the Judge President puts forward for why he's taken this step is that the Judge Legali was appointed in 2012. So, he actively served as a judge for 6 years, but he's now not been a judge for 8 years, and each time he's been paid a full salary.

[00:05:53]And there's also been a second salary now being paid to an acting judge who's having to carry the load. So, essentially the judge president is saying, "We are paying two salaries for the same job, and that can't continue going forward." So, that is one of the factors that the JSC will have to weigh up when they decide what to do in this case.

[00:06:12]>> And of course, this being a first, in other words, the first time that a judicial conduct tribunal is appointed to determine um whether a medical constitu- condition actually constitute uh judicial incapacity.

[00:06:30]>> Yes, see, it is it is the first time that the the there is a tribunal focused squarely on capacity. In the past, we have uh seen uh a judicial uh inquiry on the fitness of a judge, and that was Judge Mogoeng Motsoeneng in in 2024. And the allegation there though was judicial misconduct. The question was, "Does the judicial misconduct also have elements of incapacity?" So, it was a a hybrid kind of inquiry. This time around, we're only looking at the fitness of the judge, the medical fitness to continue to in office. And obviously, this is unprecedented, and it will determine how future cases will be determined. So, there's a a an important question about whether a judge can really um continue in their office, and to what extent in terms of the accountability rules of the judiciary can that medical unfitness make you unfit completely to continue as a judge.

[00:07:32]>> Of course, this is someone who has had quite an illustrious career from the time he was an attorney in the Free State running a successful black-owned legal practice to who then upon or after his appointment went on to preside over some incredible cases including sentencing seven notorious Free State gang members to life sentences for matters.

[00:08:04]>> Yes, so Judge Legodi when when he was an attorney, yes, he he he did do really important work. Um he was one of the I think successful attorneys, black attorneys in the Free State. Um he was doing work that was quite niche. A lot of black attorneys had not been given the kind of work that he was given in terms of labor law, of commercial law. It was still very rare to find black attorneys doing that work. And even when he became a judge, you're quite right. One that that sentencing judgment for gang-related crimes, it was in terms of the prevention of organized crime act, which at the time was still an untested law.

[00:08:44]He also presided over cases that involved constitutional law. And so he was a fairly good judge, and it's quite sad that the illness has now led him to be before the tribunal. And even today you can see that he is unwell. So it is a a really sad situation.

[00:09:01]>> Mr. Legodi Benjamin, thank you very much for enlightening us on this uh um important matter. Really appreciate it.