Judicial Service Commission (JSC) interviews for the Western Cape High Court have laid bare the “notoriously troubled” state of the division, with candidates facing pointed questions about how they would address the “serious fractures” in that court.
During the tenure of former judge president John Hlophe — impeached as a judge for gross misconduct in May — the division was known to be divided and unhappy. In her interview to replace him as leader of the court, his deputy, Patricia Goliath, told the JSC that when she became acting judge president, “the division was in a dire state”.
There had been no judges’ meetings for six years, the judges’ tea room was “non-existent”, the morale of the judges was low, and the director of public prosecutions was not allowed into the court “for some reason”.
These were things she immediately sought to address when she took over, she said. She insisted that the court was now “not in disarray”.
“I can categorically state that if there is a judge who says the division is troubled as I sit here today, that is not ... correct,” she said. Things were working and the court’s challenges were similar to those of other courts — challenges such as the need to move to digitisation and the need for more judges.
As deputy judge president, Goliath would naturally be seen as a front-runner to succeed Hlophe. But she faced a barrage of questions and was roundly grilled for just under three hours. Another senior judge in her division, Rosheni Allie, had written to the JSC raising a number of concerns about Goliath’s leadership style and measures she had implemented as acting judge president.
The memorandum was not publicly released, but based on the questions, Allie’s concerns included that there were no minutes taken at judges' meetings and that cases were allocated to judges arbitrarily. Allie also alleged that Goliath communicated with other judges through her secretary and that once, when Goliath’s secretary delivered a file to her, and she said she was unable to take on the case, Goliath’s secretary asked why she could not do it virtually.
Commissioner Tembeka Ngcukaitobi SC said this was more than formal communications, but was “substantive judicial work that was being conveyed through the secretary”.
Goliath’s answers only led to more questions. When she said her secretary had told her that she did not tell judge Allie how to hear a matter, Kameshni Pillay SC asked whether she was telling the JSC that Allie’s claim was “an untruth”.
Pillay said: “What you’re saying to the commission is that judge Allie in her comment to the commission included a fabrication or an untruth ... it ties into something you said much earlier in your exchange with the CJ. You urged us to, in your words, treat judge Allie’s comments with caution. Now that’s a very serious thing to ask the JSC to do — in particular when you are talking about a sitting judge.”
Goliath said she and Allie were both candidates for the position of DJP in 2016. Since her appointment, Allie “did not communicate with me at all”. Her request for caution was because Allie had brought her issue to the JSC and not to her. “It was something she could have raised easily with me,” said Goliath.
Goliath was then questioned about her defensive stance and what this said about her ability to lead, with commissioner Sesi Baloyi SC saying she was “quite disappointed in your tone and the manner of your response”. Then it emerged that her secretary had also written a response to Allie’s letter, which Baloyi said showed “absolute disrespect” and asked Goliath how she could allow such a letter. “Your registrar should never speak like that to any judge,” said Baloyi.
Goliath’s acting deputy, Andre La Grange, was the second candidate to be interviewed and was asked about the state of the division. He said colleagues were working together, dealing with matters and sitting on the bench together. There may be colleagues “with differing views, but they are working together”.
But he said that the fallout between two leaders “affected us terribly; and the support staff”. He was referring to the acrimonious complaint and counter-complaint between Hlophe and Goliath in 2020, for which Goliath was ultimately cleared and Hlophe was to face a Judicial Conduct Tribunal. Chief justice and chair of the JSC, Mandisa Maya, had earlier ruled out questions on this history as there were still pending disciplinary processes relating to it.
La Grange said if he was appointed JP, he hoped to organise a “weekend away ... in a confidential environment” where the judges of the division could air their views.
However, La Grange also faced a number of questions about the court’s leadership in recent years, with Ngcukaitobi saying the vision he had presented for the court going forward “places you as an outsider, but in reality you are an insider”. He asked La Grange to account for some of the allegations made by Allie.
La Grange said that he had discussed the issue of minutes with Goliath and had suggested a new system that he thought would address the concern about the allocation of cases. They had “different approaches”, he said.
The third candidate Supreme Court of Appeal justice Nolwazi Mabindla-Boqwana has been out of the division for four years at the Supreme Court of Appeal. In her case, she was repeatedly questioned about why she was “moving south, rather than north”.
Mabindla-Boqwana's judgments have been widely praised and Western Cape judge Patrick Gamble — on the JSC as Goliath's “alternate” — said to her that her “acumen lies in research and judgment writing”.
The SCA would be “depleted” by her departure and “many see your future in the Constitutional Court”, he said. He asked her about her long-term goals.
Mabindla-Boqwana responded that it was difficult to say because when she appeared before the JSC last time, she did not think she would be back again so soon. But she said she was committed to the Western Cape High Court and would not abandon it.
By 5pm, the JSC had only interviewed three candidates — with four to go before it would deliberate and make its choice.
When commissioner Julius Malema reminded the commission that they had been interviewing Goliath for two hours, Maya said the Western Cape division was “notoriously troubled” and it was important the JSC make the right choice in who it recommended.
