The post of judge president of the Western Cape High Court is a “critical leadership position in a notoriously troubled division”, said chief justice Mandisa Maya at the Judicial Service Commission (JSC) on Monday.
That the court is troubled is no secret. But quite how troubled was laid bare in Monday’s interviews, which stretched late into the evening. It was after 11pm when the JSC announced it had recommended Supreme Court of Appeal (SCA) judge Nolwazi Mabindla-Boqwana for the job.
Mabindla-Boqwana spent seven years at the Cape court before being elevated to the SCA four years ago, and she is therefore both an insider and an outsider.
She takes over from the infamous John Hlophe, who was judge president for 23 years until he was impeached for gross misconduct in May. She will certainly have her work cut out.
Deputy judge president Patricia Goliath, who has been acting as judge president for nearly two years, told the commission that when she took over leadership of the division the court was “in a dire state”.
“There had been no judges’ meetings held for a period of six years, the tea room was non-existent, and the morale of the judges was low,” she said. Goliath took up the acting position when Hlophe was suspended after the JSC referred him to parliament for it to consider impeaching him for gross misconduct.
During the course of the interviews, more startling facts were revealed about the state of the division under Hlophe’s leadership. Goliath said that when she took over as leader, the director of public prosecutions and the director of court operations were “not allowed in the building”. She also discovered 324 files that needed to be actioned, “with correspondence [going] as far back as August 2022, and I had to action those matters expeditiously”. There were no judges’ committees.
In judge Daniel Thulare’s interview for the judge president post, he made an oblique reference to the factions that emerged in the wake of the dramatic falling-out between Hlophe and Goliath at the beginning of 2020, when Goliath lodged a wide-ranging complaint against Hlophe. Goliath made several allegations, including that Hlophe had assaulted his colleague, judge Mushtak Parker, in his chambers, and that his then wife, Gayaat Salie-Hlophe (now Da Silva-Salie), had been inappropriately involved in running the division.
On Monday, Maya ruled out questions on this dispute because disciplinary processes are still pending. But Goliath said that “the dispute was between myself and the judge president — it didn’t involve any other judges”.
However, this was a naive statement given the facts of the dispute. After the alleged assault, Parker had allegedly gone to his colleague, Derek Wille, and deposed to an affidavit about the alleged assault, which document quickly did the rounds. Hlophe then said in response to her complaint that Parker would deny the dispute. This prompted at least 10 other judges to refuse to share a bench with Parker because of his “apparent and serious lack of integrity” in giving two conflicting accounts. Salie-Hlophe made her own statement. It was toxic and messy, and several judges were pulled into the conflict.
Transformation and excellence are not mutually exclusive concepts ... Given our unequal past, while we transform we [must] mentor and develop skills in a structured way to get us all to the level that benefits the litigant
— Judge Nolwazi Mabindla-Boqwana
Thulare said he began acting in the division in 2017 and, at that time, the majority of judges went to tea. When he came back to act in 2020, “only almost half attended tea”. When Hlophe left, “there was, for all intents and purposes, a swap”.
“Those who had not attended tea between February 2020 up until the date of his departure then attended tea. And those who had attended in his term ... did not attend. That was the reality and it’s still the prevailing position, by the way.”
However, one of the reasons Goliath’s interview went on so long was because of questions from the JSC about how far she had gone to address these problems, and whether she herself had created new ones. This line of questioning was prompted by an apparently stinging letter from soon-to-retire judge Rosheni Allie.
The letter has not been made public, but it appears from the commissioners’ questions it made several allegations against Goliath and her leadership of the division. These included that no minutes were taken during judges’ meetings, that Goliath communicated with her colleagues via her registrar (“That is quite unusual. Speaking for myself, I’ve not encountered it in my 24 years on the bench,” said Maya) and a complaint about how cases were allocated. Seemingly supporting Allie’s view, Thulare said, “It is unfortunate if I have to receive something from someone in the administration pretending to be you.”
Goliath did not put her best foot forward when she answered the questions, with some commissioners probing her defensive stance.
Mabindla-Boqwana’s immediate challenge will be to heal these divisions, which have lowered morale among judges. In her interview, she said she would visit each colleague in his or her chambers to “find out what the issues are”, and to open up communication channels. Next, she wanted to hold a “bosberaad, maybe with a facilitator, to talk about the issues faced by the division”. By engaging in this process, she hoped the judges would collectively carve out a vision for the short, medium and long term, she said.
Goliath insisted the division was not “in disarray”, as had been claimed by the National Association of Democratic Lawyers ahead of the interviews. The division’s problems were the same as those faced by other courts, she said.
But these difficulties are not to be underestimated. As is the case with other divisions, the Western Cape has backlogs, too few judges, not enough courtrooms and old infrastructure. Like some courts, it still needs to fully digitise.
Unlike other high court divisions, Mabindla-Boqwana will face the challenge that the Western Cape High Court has lost many of its most experienced judges to retirement and elevation — 200 years of judicial experience, said judge André la Grange, who was also interviewed for the post.
Mabindla-Boqwana is in a good position to be an intellectual leader in the court. She has worked at two appellate courts, is respected across the judiciary for her judgments and is widely viewed to be deservedly on her way to the Constitutional Court.
It also appeared from the interviews that there were concerns in the division about the way cases were allocated to judges, raising the question whether Goliath had confidence in her permanent judges to deal with complex civil claims, administrative law cases and constitutional matters.
Allie complained in her letter about how cases were allocated . Her concern seemed to be about a lack of transparency in how allocations were made, leading to perceptions of preferential treatment.
In Thulare’s interview, he spoke about “the privatisation of private law”. He said complex civil law cases or those involving constitutional and administrative law were assigned to acting judges, mostly from the Cape Bar, while permanent judges became “experts in criminal litigation”. The possible effect, he said, was that you may not get an African woman judge leading a panel on a case involving the National Assembly, or a black judge presiding over a constitutional matter.
It is common to hear practitioners complain about judges, but (if Thulare’s objection was a fair one) it is unusual for judges to feel their leaders lack confidence in them. Mabindla-Boqwana’s challenge will be to ensure that all her judges — both permanent and acting — get exposure to different areas of law, and that cases are assigned in a way that empowers them and allows them to grow, while also doing justice to litigants.
Finally, Mabindla-Boqwana identified transformation as a key issue, saying the Western Cape had “unique challenges” in this regard.
“Many black and African judges who become judges in the Western Cape did not practise in that province,” she said. When she checked the Cape Bar’s website, there were “few black and women senior advocates” and “only two black African men and no African woman had taken silk”. However, she said “very good black African judges” had been drawn from the magistracy, providing a “good balance” and that she would also look to the academy for acting judges.
She spelt out her approach: “Transformation and excellence are not mutually exclusive concepts ... given our unequal past, while we transform we [must] mentor and develop skills in a structured way to get us all to the level that benefits the litigant.”
Facing all this, it is no surprise her colleague Pat Gamble delicately asked about her “long-term plans”. His unspoken question was whether she would stay the course. She said it was hard to say, as the last time she was at the JSC she had not expected to be back so soon. However, she was committed to the Western Cape court and would not abandon it.
“It is very close to my heart. I literally grew up there,” she said.
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