Members of the legal fraternity are eagerly waiting to see if Western Cape Judge President John Hlophe recommends to the Judicial Service Commission (JSC) the re-advertising of four vacancies on the Cape Bench because the division is lagging on racial transformation.
Interviews for the posts took place in Cape Town this week as tensions mounted over the absence of Africans among the candidates. Also controversial was the fact that one of the candidates interviewed, senior counsel Jeremy Gauntlett, was among eight top advocates from the Cape Bar who publicly called for Hlophe to step down two years ago.
Just returned from long leave, Hlophe was a member of the interviewing panel.
Three of the candidates — Gauntlett and senior counsels Patric Gamble and Elize Steyn, are white. Attorney Chantel Fortuin was the only person of colour to make the short-list.
Magistrates Monde Samela and Phakama Ngewa, nominated by the Black Lawyer’s Association, failed to make it past the first round. Samela and Ngewa were reportedly strongly favoured by Hlophe, on leave when the first round of nominations was decided earlier this year. His deputy, Judge Jeanette Traverso, acted for him.
The only unsettling question came from the ANC commissioner Fatima Chohan, who asked Gauntlett how he would describe his relationship with Hlophe, as a matter of “public scrutiny”.
‘Revenge is a dish best eaten cold’
Gauntlett said they had not discussed their relationship. “I can only speak for myself,” he said.
“What happened before gave rise to proceedings before this body as regards complaints made and pronounced upon by this body.
“Although there is a saying that revenge is a dish best eaten cold, we all have to move on in life and I consider that aspect behind me.”
He said he had also been received with “absolute courtesy” by Hlophe when he had consulted him on case matters.
“As far as I’m concerned we are both professional people and we would behave professionally towards each other,” Gauntlett said.
“I’m sure there are judges who had issues of friction — but fundamentally what happens in court must stay in court and be dealt with in court.
“We need to get on with each other — I have no doubt that were I to be appointed, the judge president and I would function in the way that you would expect of him and me.” No specific mention was made during Gauntlett’s interview of the clashes between the two men over the past five years.
In a letter to the Cape Times in 2007, Gauntlett and seven other senior advocates voiced dissatisfaction with the JSC’s decision to discontinue its inquiry into Hlophe’s receipt of money from the Oasis Management Group, despite finding that his explanation was unsatisfactory.
The advocates viewed “with deep concern” a series of complaints lodged against Hlophe with the JSC. They supported the views of former Constitutional Court Judge Johann Kriegler, who had written in the Sunday Times that Hlophe was guilty of grossly improper conduct and unfit to be a judge.
In a confidential 2005 report about racism in the judiciary, leaked to the media, Hlophe accused Gauntlett, Hlophe’s predecessor Judge Edwin King, and his deputy, Judge Traverso, of racism.
He claimed they “undermined his authority” because he was black.
The report was handed to then chief justice Arthur Chaskalson and former justice minister Brigitte Mabandla, without giving those accused an opportunity to respond.
Gauntlett, a former chairperson of the Cape Bar Council, vigorously denied the allegations at the time, saying he had supported Hlophe’s nomination as a judge.