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Tensions of post-Hlophe Western Cape High Court laid bare before JSC

Tensions of post-Hlophe Western Cape High Court laid bare before JSC
Rebecca Davis
By Rebecca Davis
14 Oct 2024
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With an unprecedented seven candidates vying to replace John Hlophe as the Judge President of the Western Cape High Court, the JSC on Monday was told of the deep divisions that Hlophe’s tenure has left on the bench.

Judges refusing to sit on the same cases with each other. Judges giving the tea room at the Western Cape High Court a wide berth. High-profile matters only allocated to certain judges. Judges only communicating through their secretaries.

These were just some of the accounts given to the Judicial Service Commission (JSC) of the discord at the Western Cape High Court following the chaotic tenure of now-impeached John Hlophe as the division’s Judge President.

A marathon session on Monday, 14 October 2024 at the JSC saw commissioners sit for more than 12 hours interviewing seven candidates to fill the job of Hlophe’s replacement – and tales of dysfunction at the court came thick and fast.

The mere fact that there were seven candidates competing for the position was deeply telling, advocacy group Judges Matter observed in advance – pointing out that normally judges throw their weight behind one or two Judge President candidates in such situations.

“The fact that this is not the case in Western Cape High Court speaks to the deep divisions in the court, largely fomented by impeached Judge President Hlophe,” Judges Matter wrote.

If the DA’s approach to the courts to block the uMkhonto Wesizwe (MK) party’s candidate for the JSC had not succeeded, Hlophe himself could have been sitting as a member of the commission tasked with selecting his successor – a truly surreal thought, given the extent to which the shadow of Hlophe loomed over proceedings nonetheless.

Current court leadership grilled till charred


It took almost four hours for JSC commissioners to finish questioning the first candidate of the day, current acting Judge President of the Western Cape High Court Patricia Goliath. It was an interview scheduled to take the standard 40 minutes allocated to candidates, and this lengthy inquisition threw the day’s timetable off the rails.

Goliath was always likely to be looking at a lengthy probe because of her role in raising the heat against Hlophe while serving as his number two at the court.

Goliath lodged a complaint against Hlope in January 2019, accusing the Judge President of trying to influence the appointment of judges to benefit President Zuma; accusing him of assaulting a fellow judge; of deliberately sidelining her as his deputy and verbally abusing her; and of allowing his then-wife Gayaat Salie-Hlophe to interfere with the allocation of judges.

Chief Justice Mandisa Maya was quick to shut down any attempt to revisit this territory in Goliath’s Monday interview, on the grounds that certain aspects – involving the alleged assault by Hlophe of fellow judge Mushtak Parker – are still before the JSC.

The factor that would keep Goliath in the hotseat for hours, regardless: a complaint laid against Goliath’s candidacy by fellow Judge Roshenie Allie.

Allie went up against Goliath in 2016 for the post of Deputy Judge President and lost out, in part perhaps because the commission was read out derogatory comments Allie had made against judicial colleagues to a former friend over WhatsApp.

If the complaint against Goliath was Allie’s revenge, it was a doozy.

Allie described Goliath’s leadership of the Western Cape court since stepping into Hlophe’s shoes as “ruinous”.

Allie’s complaint further alleged that Goliath could be swayed to expedite court dates; that she shows favouritism in allocating matters to judges; that judges were not consulted; and that she communicated with judges through her registrar.

Goliath strenuously rejected all these claims and blamed a number of ongoing problems on Hlophe’s legacy.

“When I stepped into that position of acting JP, that division was in a dire state,” Goliath told the commission.

“There were no judges’ meetings held for a period of six years. The tea room was non-existent. The morale of the judges was low. I immediately introduced mechanisms which made the environment more conducive.”

Added Goliath: “If there is a judge who says the division is troubled as I sit here today, that is not a correct statement”.

Yet a number of other candidates for the JP position would go on to describe the court environment in similar terms: as one of “protracted discord”, to quote Judge Denzil Potgieter. Or as a milieu which was “not easy”, with “serious dynamics at play” and “trust relationships with colleagues” which have “broken down for years”, to quote Judge Babalwa Mantame.

Commissioners seemed to indicate that they had no choice but to give the Allie complaint due weight.

“It’s very unusual for this body to receive a complaint against a judge from a sitting judge,” remarked commissioner Tembeka Ngcukaitobi.

“It’s usually the attorneys, the advocates, the clients. But to get something from a judge which says this person [Goliath] is not fit to be a JP, it’s a big thing. [Allie is] sending an alarm to the whole country about the state of the division.”

Current acting deputy Judge President André le Grange was also caught in the crossfire of Allie’s complaint, with commissioners suggesting that if the allegations about Goliath’s leadership were true, they should apply equally to Le Grange as her deputy.

Le Grange attempted to fence-sit in response: a tactic which did not win the favour of the commission, with Chief Justice Maya irritably accusing him of being “painful” to listen to.

Le Grange also put his foot in it when he tried to claim that he and Goliath had come to a decision that they would not attempt to tackle the substantive issues of the division until a permanent appointment of the JP had been made.

Maya expressed concern that the duo had elected to “leave the court in limbo”, given that they were being paid as much as acting leaders as the permanent appointees would receive.

Inexperience the order of the day


Three of the seven candidates interviewed on Monday had five years or less experience as permanent judges, raising the question of whether the JSC’s time was being wasted by not engaging in more rigorous pre-pruning of the shortlist.

Commissioner Mvuso Notyesi accused one such candidate, Judge Daniel Thulare, of wanting to join the priesthood shortly after being baptised.

Another candidate, Judge Nolwazi Mabindla-Boqwana, faced the opposite kind of scepticism: viewed as such a rising star in the judiciary that some commissioners seemed to find it implausible that she would find long-term career satisfaction at a regional court.

The judge delivered a compelling and practical vision for her leadership if appointed, including creating an “elders’ committee” to advise on matters such as the selection of acting judges.

Mabindla-Boqwana spent seven years at the Western Cape High Court but has been based at the Supreme Court of Appeal since 2022, prompting the Chief Justice to question whether “coming in from the cold” to take up the leadership of the Western Cape court “would not cause resentment”.

The judge suggested that her slight outsider status might, in fact, be an advantage.

“I would be bringing a fresh perspective,” Mabindla-Boqwana said.

“When you’re not too close, you have a broader sense of things.”

Crucially, Mabindla-Boqwana also has specialised training in mediation. By the sounds of the dynamics within the Western Cape High Court, those skills could be among the most useful anyone could bring to the post. DM

Late on Monday, night, the JSC recommended Judge N P Mabindla-Boqwana for the position of Judge President of the Western Cape Division of the High Court.

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