South Africa

JUDICIARY IN CRISIS

Black Lawyers Association comes out to bat for John Hlophe as SA’s Chief Justice

Western Cape Judge President John Hlophe. (Photo: Gallo Images / Foto24 / Bongiwe Gumede)

Gauteng Acting High Court Judge Mabaeng Lenyai has signed a letter of Black Lawyers Association's support for Western Cape Judge President John Hlophe — found guilty of gross misconduct by the JSC — nominating him for the position of Chief Justice of South Africa.

The public nomination process closed on Friday, 1 October, which is when Lenyai, as Secretary-General of the Black Lawyers Association (BLA), dropped the letter to President Cyril Ramaphosa.

Hlophe has, unsurprisingly, accepted the nomination even though he stands a snowball’s chance in hell of succeeding.

However, by supporting Hlophe, the association has nailed its colours to the mast.

The Judge President of the Western Cape faces an impeachment hearing after a Judicial Conduct Tribunal (JCT) and the Judicial Service Commission (JSC) found him guilty of gross misconduct. 

It appears the BLA did not seek to nominate or support several other heavyweight candidates including Supreme Court of Appeal President Mandisa Maya; Gauteng Judge President Dunstan Mlambo; Deputy Chief Justice Raymond Zondo; and Constitutional Court Justice Mbuyiseli Madlanga.

Lenyai said the association joined “many civil society structures in our country who support the consideration and appointment of Judge Hlophe as Chief Justice of our Republic”.

These “civil society structures” were not named.

The BLA said Hlophe’s “intellectual gravitas is present for all to see throughout his curial and extracurial writings as an illustration of his intellectual leadership”.

The judge president, the association claimed, “has recognised and sought the available judicial talent of many women and black practitioners as attested by the changing composition of the Western Cape Division”.

This sits uncomfortably with the fact that when Hlophe released a list of acting judges for the division for the second 2020 term, it contained no black African men or women and two new appointments were a white man and woman.

The appointment of acting judges to the Cape bench was brought into sharp focus by Deputy Judge President Patricia Goliath in her January 2020 complaint to the JSC about her boss. In her complaint, Goliath accused Hlophe of repeatedly appointing the same candidates.

The list of acting judges for the Western Cape for the second term of 2020 contained people who had acted in this capacity for some time. These included Bryan Hack, Frederick Sievers, Bernard Martin, Matthew Francis, Alma de Wet, Marius Diemont, Almero de Villiers and Selwyn Hockey. 

Goliath also complained in particular about the appointment of Sievers, who is the husband of Goliath’s former registrar. Sievers served for three terms in 2018.

In 2019, Sievers was interviewed for one of two vacancies in the division, but these were filled by other candidates.

Nonetheless, the BLA said Hlophe’s “transformative approach to nurturing of judicial talent is needed in the position of Chief Justice”.

During Hlophe’s more than 30-year academic and judicial career he had “provided many interesting insights on the South African jurisprudence before and post constitutional dispensation”, wrote Lenyai.

His writings were, the BLA added, “insightful and pioneering on the doctrine of legitimate expectation fashioned a new approach and understanding of the doctrine and its contribution to our administrative law”.

This singled him out as one “who bothered himself with the development of our law and social perspective that must punctuate that development. These are good character traits for a Chief Justice”.

The JP’s judgments were “progressive and written in a clear language and the ever-present preparedness to eschew the mundane and the dominant in favour of the untested and less recognised”, and were a hallmark.

This, said the BLA, “lays a solid foundation for others to follow and take the jurisprudence baton forward based on the path he has paved”. 

The BLA’s national executive committee consists of Mashudu Kutama, president; Bayethe Maswazi, deputy president; Lenyai; Charlotte Mahlatji, deputy secretary-general; Noveni Kubayi, treasurer-general; Zanele Nkosi; Vumani Mthembu; Nolundi Nyati; and Shandukani Mudau, president of the BLA student chapter. 

Nyati is currently an acting judge in the Western Cape division. DM

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All Comments 29

  • ‘Insightful and pioneering’ Is that what one calls Judge Hlohpe? I don’t know whether to laugh or to cry. South Africa has become ‘Ship of Fools’. Very depressing reading on a Monday morning.

    • When will South Africa relinquish its obsession with the colour of one’s skin which has no relevance whatsoever as to whether one is good or bad, competent or incompetent, honest or dishonest?

  • Very very depressing. Our judiciary, with the likes of the BLA,and Hlophe has taken a terrible knock. It looks like it is all down hill now!!

  • Going by its history, this particular snowball has every chance of not only surviving hell but running it. The thought of this depresses me immeasurably. As for the BLA… clearly black lawyers think differently, too differently to be practising lawyers. Who are there people??

    • Nationalism …. of whatever hue, knows no shame ! This coterie of legal misfits is a part of our apparently ‘non-racial’ landscape, and a sign of the direction parts of it are headed into. Remember Madiba’s words about his rejection of white or black or any other form of domination ? Well… with Mbeki’s “I am an African …” that whole notion of non-racialism and discrimination was proverbially thrown under the bus … and a false pride in being ‘what we are’ took hold (even in the vaunted ANC) … and continues to flourish and receive succour in sections of our community. People like Tutu must be squirming about what is happening in our beloved country now. One observation about slippery Hlope’s so-called ‘intellectual’ prowess, which the BLA does not mention …. is his moral/ethical turpitude and propensity for vulgar utterances. The current ‘pandora’ revelations about the high and mighty, should teach us about the distinction between what is legal and what is ethical behaviour .

  • It would be great to have a follow up article getting quotes from the BLA directly and to somehow ascertain if this nomination is from the entire association in via a vote or from a few bright sparks.

  • Yeh, well, hopefully, when publicly questioned for the job, he’ll have little difficulty shooting himself in the foot! Great job, Marrianne. It shows how cynical the judiciary has become and how close to state capture. Sad and very sad.

  • And here I was thinking that perhaps the judiciary had escaped state capture, and that perhaps state capture was fading. This shows state capture is alive and well even in the judiciary.

  • BLA you are utterly shameless and devoid of any moral principles. You contribute to the widespread view across the world that this country and its government and institutions are up for grabs by crooks and other low forms of life.
    Has everyone forgotten that this same JP of the Western Cape asked a major financial institution, which also happens to be a regular litigant in his Division, to stump up for an expensive Christmas party for the judges. They jumped at the opportunity. Are you perfectly comfortable with that, BLA?

  • Surely there are some black lawyers who subscribe to the Daily Maverick and who are as shocked as us “whities”,and who will speak out at the BLA’s shocking support for Hlophe. Come on, show that you will not be intimidated by your brethren, and at least indicate what you think on this very serious matter.

  • Hard to believe the members of the BLA went along with this self inflicted black eye. Anyone who is interested in the issue of judicial appointments will know how ridiculous this nomination is. It’s disappointing to discover that there is a lack of integrity within the BLA, but for them to so publicly declare it is beyond surprising.

  • It is bad enough that their reason for existence is self-serving (promotion and income for it members under cover of race equality), but to nominate this questionable person to this position to further that self-interest in beyond the pale. Membership of BLA should be a disqualifying factor for any future judicial appointment on the basis of this nomination.

  • What an embarrassment for the many fine lawyers of every colour in SA, to be associated with this intellectually and morally compromised “association” of fools.

  • The ‘Black Lawyers Association’ is racist, so nobody needs to take notice of their imbecilic utterences. Will a ‘White/Indian/Coloured Lawyers Association’ be allowed in this banana republic called South Africa? What would their recommendation/s be?

  • ” .. a snowball’s chance in hell of succeeding.” … rather strong language methinks ! Is that not what they said about that other fascist Trump’s chances in America ? AND … there is still a fairly strong appetite there, for that kind of misogyny and supremacist thinking. We should take note of and beware of the embracing of different kinds of aberrational thinking .