The South African National Christian Forum (SANCF) has requested Minister of Justice and Constitutional Development, Mmamoloko Kubayi, to initiate an investigation against Chief Magistrate Tuletu Tonjeni, following her controversial decision to release taxi boss Madoda Joe “Ferrari” Sibanyoni and his co-accused due to the prosecutor's absence.
Image: Timothy Bernard / Independent Newspapers
Minister of Justice and Constitutional Development Mmamoloko Kubayi has been requested to investigate Mpumalanga Chief Magistrate Tuletu Tonjeni, who presided over the extortion and money laundering case involving taxi boss Joe “Ferrari” Sibanyoni and his co-accused.
This is after Tonjeni found state prosecutor Mkhuseli Ntaba guilty of contempt of court and authorised a warrant of arrest for failing to attend the scheduled court appearance last week, striking the case off the roll, and cited an unreasonable delay in proceedings.
The South African National Christian Forum (SANCF) said the Justice and Constitutional Development should initiate an investigation against Tonjeni and establish whose interests she acted in.
This comes after the National Prosecuting Authority (NPA) filed an application for leave to appeal Tonjeni’s orders.
The NPA stated that it was deeply concerned with how she handled the high-profile matter.
The National Director of Public Prosecutions (NDPP), Advocate Andy Mothibi, said he had appointed a senior legal team to manage the appeal and demand written reasons from Tonjeni.
Ntaba reportedly informed the Kwaggafontein Magistrate’s Court that he had prior commitments and security concerns, requesting that the hearing be shifted.
Tonjeni denied the request and ordered him to appear.
When Ntaba failed to appear, Tonjeni immediately struck the high-profile extortion case off the court roll and issued a warrant of arrest for him.
In the letter issued to Kubayi on Sunday, SANCF president Bishop Marothi Mashashane said Tonjeni has brought the entire justice administration in the country into deep public disrepute and mockery.
“We urgently plead with your office and the Magistrates Commission to immediately suspend the presiding senior magistrate pending an intensive investigation, which we request should be initiated against her to establish whose interest she acts in,” read the letter.
“Such are the kind of magistrates we have in our lower courts who sent poor accused persons to prison for failure to attend court while on bail, without holding an enquiry to establish whether it was the person's own fault, instead of issuing a warrant of arrest suspended for at least 14 days to allow the prosecutor to present himself and explain why he failed to appear, she immediately pronounced that he is found guilty of contempt of court,” Mashashane said.
Mashashane added that no judicial officer had the authority to arbitrarily dismantle an organised crime case of this magnitude on a first-instance delay.
He said no established case law in South Africa supported striking a critical criminal trial off the roll on a first postponement request without ordering a provisional “final postponement” first.
“By bypassing standard criminal procedure, this senior magistrate has set a dangerous precedent that effectively rewards syndicates who intimidate state officials,” said Mashashane, adding that to brand a prosecutor with a criminal contempt order because he retreated due to a verified threat to his life was a complete perversion of judicial power.
“Section 168 of the Criminal Procedure Act 51 of 1977 explicitly empowers a court to adjourn proceedings when necessary or expedient. Our higher courts have firmly established that a case should not be struck off prematurely over isolated delays, particularly where a systemic or logistical crisis is present.
“The fundamental constitutional principle of the audi alteram partem (hear the other side) dictates that every individual has the absolute right to be heard and defend themselves before being convicted. As established in landmark cases like De Lange v Smuts NO and Others [1998] ZACC 6, finding an individual guilty of contempt in absentia, without allowing them the opportunity to present a lawful excuse, constitutes a flagrant violation of their right to a fair trial,” the letter reads.
Kubayi’s spokesperson, Palesa Rammitlwa, acknowledged questions sent to her but had not responded at the time of publication.
manyane.manyane@in.co.za