Judge John Hlophe participates in JSC interviews for Cape High Court

Western Cape judge president John Hlophe participated in Judicial Service Commission (JSC) interviews for the Western Cape High Court on Monday — despite being recommended for suspension and being referred to parliament for possible impeachment for gross misconduct by the same body.

After the afternoon’s interviews, magistrate Noluthando Nziweni got the nod for appointment to the Cape division.

The constitution says that when interviewing for a particular high court, the judge president of that division, or an alternate designated by him or her, be part of the JSC. The premier of the relevant province, or his or her alternate, must also be there.

In the past, Hlophe has designated his deputy to sit on his behalf when his disciplinary matter was pending before it. However, on Monday, after a brief meeting behind closed doors, the interviews proceeded with Hlophe participating.

Nziweni told the commission she had already acted for seven terms in the Western Cape division and produced more than 30 written judgments, seven of which had been reported in law reports.

Having started out as a prosecutor in the district courts, she had, within four years progressed to the regional court and then the high court as a state advocate. She had also made sure to assist young African women coming up, she said in response to a question from Hlophe about transfer of skills.

When he asked her about concerns that, while she had a lot of experience in criminal law, she did not have in other areas of law, Nziweni responded she was not sure what more she could do to equip herself. She said she had done commercial matters in the magistrate's court and high court. “What should I do more to prove myself?”

But Nziweni stumbled when she was asked by MP Bulelani Magwanishe what the difference was between “in consultation with” and “after consultation with” in legislation. She said she would “venture an answer” that “after consultation with” meant a requirement to consult afterwards.

This was incorrect. “After consultation with” means that a person must be consulted first before a decision is taken; whereas “in consultation with” requires that the person being consulted must agree with a decision before it is validly taken.

Commissioner Tembeka Ngcukaitobi SC followed up giving the correct answer. He said he had read some of Nziweni’s judgments and they were competently written. But she lacked skills in pure constitutional and administrative law, he said. He asked her what she planned to do to address that gap.

“I take the point. To work on the bench, you always learn. It’s always a learning curve,” she said, adding she had good capacity for research. When questioned further by commissioners Carol Steinberg SC and Mvuso Notyesi, she said she would not simply wait for cases before doing research. She would read more and participate in ongoing judicial education initiatives.

Hlophe is litigating against the JSC’s decision that found him guilty of gross misconduct. He lost in the high court but was granted leave to appeal to the Supreme Court of Appeal. In the meantime, the JSC on July 25 decided to recommend to President Cyril Ramaphosa that Hlophe be suspended — a decision he has said he is also challenging, in a separate case.

Ramaphosa is yet to decide on a suspension. Asked on Thursday, the president’s spokesperson Vincent Magwenya said “the matter is receiving all the attention it deserves”.     

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