Western Cape Judge President John Hlophe’s presence at the Judicial Service Commission (JSC) interviews in Midrand this week raised both eyebrows and consternation due to his long-running legal battles involving the commission and his connection to one of the candidates.
Attorney Derek Wille, who was one of four candidates recommended by the commission for appointment to the Western Cape bench on Thursday night, was a partner at Smith Tabata Buchanan Boyes when it controversially awarded a study bursary for disadvantaged students to Hlophe’s son, Thuthuka, in 2002.
A complaint regarding the bursary was lodged with the commission in 2006. It was dismissed on the grounds that Hlophe had no knowledge of the payment.
On Thursday, at the beginning of Wille’s interview, Hlophe declared their relationship, confirming they had met in 1982 while studying law at the Pietermaritzburg campus of the then University of Natal.
Hlophe said they had met one morning after he had been beaten by police for “being in a white area” – around the university library where he was studying – without the proper paperwork.
According to Hlophe, Wille “took my dompas and he immediately employed me … This allowed me to stay in a white area. I was his gardener just to beat the system.”
Hlophe said this act, repeated whenever the dompas required renewal, allowed him to study at the library.
“I suppose I owe him … Without his help, I wouldn’t be here today,” said Hlophe, who went on to study at the University of Oxford in the UK.
The issue of the bursary awarded to Hlophe’s son was raised by commissioner Fiona Stewart, Western Cape Premier Helen Zille’s representative on the commission.
Wille said that, although he had been head of the firm’s bursary scheme, he “stood down” from the panel that had interviewed Thuthuka before the bursary was awarded.
This exchange later led to Hlophe recusing himself when Wille’s candidacy was discussed during the commission’s deliberations – done behind closed doors – and when voting for Wille was conducted.
However, Chris Oxtoby, from the University of Cape Town’s Democratic Governance and Rights Unit, said this was “problematic” and that Hlophe should have recused himself from all the Western Cape High Court interviews.
“The judge president sat during the interviews, put questions to all the candidates and, according to the JSC’s version, would also have sat in deliberations on the other candidates before the vote.
"There is clearly the potential for him to influence the process and, if the judge president felt the need to recuse himself at all, this should surely have happened before the interviews began, or at least before the deliberations on the other candidates.”
Commission spokesperson Thoko Didiza said the JSC was of the opinion that there was no need for Hlophe to have recused himself from all the interviews for the Western Cape High Court.
Hlophe’s presence did appear to influence some of the commissioners. Economic Freedom Fighters leader Julius Malema thanked Wille at the end of his interview “for the role you played in the life of our JP [judge president]”.
Malema added that, were it not for Wille’s action, “we would not have … such an example of black excellence”.
Hlophe’s general presence during the past week’s interviews may also cause a future headache for the commission.
He is the subject of a 2008 complaint lodged with the commission by the full bench of the Constitutional Court regarding his alleged attempt to influence Judge Bess Nkabinde and then acting Judge Chris Jafta in a case related to fraud and corruption charges against President Jacob Zuma – then an ordinary citizen.
Hlophe had lodged a counter-complaint with the JSC, arguing that the Constitutional Court judges had infringed on his rights by going public with their complaint.
Neither of the complaints have been fully investigated by the commission because of a litany of court cases in the intervening years.
These included an application brought by Nkabinde and Jafta contesting the legality of a tribunal set up by the commission to investigate the complaints.
Last year, the Constitutional Court dismissed an application by Nkabinde and Jafta – who still sit on the country’s apex court – to appeal a Supreme Court of Appeal judgment that found that the commission’s tribunal was lawful and should proceed with its work.
JSC spokesperson Carel Fourie said the judges president of all the divisions in the country had nominated Hlophe to represent them on the commission “as allowed for by the Constitution”.
Oxtoby, however, questioned the “appropriateness” of the nomination to the commission “since the same JSC is still seized with the complaint that the judge president sought to influence judges of the Constitutional Court back in 2008”.
Tolsi provides content on the Judicial Service Commission for the Judges Matter civil society coalition. The Democratic Governance and Rights Unit is a technical adviser to Judges Matter
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