Judge fights to clear her name

Johannesburg High Court Judge Denise Fisher, who was found guilty of misconduct for judicial overreach, wants to clear her name. Archive photo: Ashraf Hendricks

• Johannesburg High Court Judge Denise Fisher wants to clear her name after a judicial conduct committee inquiry found her guilty of misconduct.
• Fisher has appealed the finding that she overstepped the mark in her handling of two Road Accident Fund matters, which had become settled.
• In 2021, Fisher interrogated the settlements and referred personal injury lawyers, De Broglio Attorneys and their experts, to their respective professional bodies.
• In her appeal, the judge says she acted lawfully and in line with the Constitution, and the findings against her should be overturned.
• Her appeal will be heard in April this year.

Johannesburg High Court Judge Denise Fisher, who was found guilty of misconduct and sanctioned to a “reprimand” for judicial overreach, wants to clear her name.

Last year, a judicial conduct inquiry, established on the recommendation of the Judicial Conduct Committee (JCC), found Judge Fisher guilty of misconduct in relation to rulings in Road Accident Fund (RAF) litigation.

Personal injury lawyers De Broglio Attorneys complained that she made adverse findings against them and their expert witnesses and reported them to professional bodies without giving them an opportunity to be heard.

While he upheld De Broglio’s complaint, Judge Jeremiah Shongwe ruled that Fisher was not wilful or grossly negligent in breaching the Judicial Code of Conduct.

Judge Fisher has now appealed to the JCC against Shongwe’s finding that she should have allowed De Broglio attorneys and their expert witnesses to respond before reporting them.

In her appeal, Fisher insists she did nothing wrong and that Shongwe overstepped in his conclusions. She argues that since Shongwe specifically noted her conduct was neither wilful nor grossly negligent, he was not entitled to find her guilty under the Judicial Service Commission Act and Judicial Code of Conduct.

She also referred to the fact that De Broglio’s initial complaint had been dismissed by Judge President Dunstan Mlambo who said it related to her “judgments” and that the JSC was not the correct forum for complaints by unhappy litigants.

De Broglio appealed Mlambo’s ruling, and a three-member appeals committee ruled that Fisher should face an inquiry into the merits of the complaint.

Fisher argued that Shongwe misread the appeals committee’s ruling, which only cited De Broglio’s complaint that she had “trampled on the party’s rights and ignored the basic principles of audi alteram partem (listen to the other side)”. She says Judge Shongwe had misread this as the appeals committee making such a finding, when it had not.

“This was clearly material to his conclusion that the complaint had been established,” she wrote.

Fisher says the complaint should have been dismissed, as the Judicial Service Commission Act does not allow complaints regarding Judicial Code breaches unless a judge’s conduct was wilful or grossly negligent — something Shongwe did not find.

She further argues that Shongwe wrongfully concluded that the appeals committee upheld the appeal because she had “trampled” on the complainants’ rights.

RAF cases in question

The two cases in question were heard by Fisher in 2021, involving claims against the RAF: one by Marilyn Doris Taylor and the other by Hlengani Victor Mathonsi. Both were represented by De Broglio Incorporated. These matters had been “settled” and went before Fisher for sign-off.

She refused, and De Broglio requested that the matters be removed from her roll. In response, she wrote a judgment referring the attorneys and their experts to their professional bodies.

In her response to the complaint before the appeals committee, Fisher stated that in both matters, the RAF was unrepresented due to a nationwide termination of its attorneys. De Broglio also used the same expert witnesses in both cases, Fisher said.

The main expert, an orthopaedic surgeon, had refused to certify that the two plaintiffs qualified for general damages, but his opinion was contradicted by a general practitioner and a plastic surgeon.

In the Taylor matter, the initial claim was just over R1-million. But a few days before the trial, this increased to more than R3.3-million. No notice of amendment was filed.

Fisher said court documents revealed procedural irregularities, a “patent mischaracterisation of injuries,” significant actuarial calculation errors, and claims for general damages where the plaintiff, based on her own medico-legal witnesses, did not qualify.

Similarly, in the Mathonsi case, the initial claimed amount (for a fractured clavicle) was increased just days before the trial from R963,600 to R2.5-million. The final settlement amount was R1.7-million.

Mathonsi had received his full salary during recovery. His orthopaedic expert declined to qualify him for general damages, but a plastic surgeon later reported he was “permanently disfigured” due to a “small, neat scar on his clavicle which was not unsightly.”

Judge Fisher said the “patent irregularities” described in her judgment all emerged from documents filed by De Broglio. When she wanted to interrogate the documents before her, she was told she was not entitled to because the matters had been settled.

This argument, she said, eventually won the day on appeal to the Supreme Court of Appeal but “this involved a modification of the law and a reversal of existing SCA authority”. The law and practice at the time of the hearing were different, with the stated case law from both the SCA and the Constitutional Court that courts had a duty to ensure that settlement agreements must not be objectionable, must accord with the Constitution and the law, and not be offensive to public policy.

Fisher also said there was a binding directive in the Gauteng division directing judges to provide practical oversight in matters involving vast amounts of public funds and no evidence. Because of this, she was bound to interrogate the papers on record.

She stated that for years, she had examined RAF settlement agreements to ensure they met the interests of justice, even when the RAF had legal representation. The RAF’s lack of representation in the Taylor and Mathonsi cases “called for a greater degree of scrutiny,” Fisher wrote.

“When the court is requested to remove the matter from the roll, this still requires an order or direction if such a removal is requested in circumstances which give rise to reasonable apprehension of impropriety. The court is entitled to investigate this matter and to write a judgment. If any potential professional transgressions manifest themselves in this context, then those can give rise to referrals,” she said.

This, she added, applied regardless of whether the parties no longer wished the court to make the settlement an order of court.

Fisher said her judgment made no final findings against De Broglio. The Supreme Court of Appeal, ruling in favour of De Broglio, departed from its own precedent by suggesting that the parties must be heard before being referred to professional bodies.

She argued that in these cases, De Broglio had “ample opportunity” to address her concerns but refused to engage with the substance of it.

Fisher said the process she followed and the orders she gave in the two matters were not only constitutionally sanctioned “but required”.

Judge Fisher’s appeal will be heard on 9 and 10 April.

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