Judge Mabindla-Boqwana joined the Judiciary in 2013, at the Western Cape Division of the High Court. (RSAJudiciary)
The Judicial Service Commission (JSC) this week chose supreme court of appeal (SCA) Judge Nolwazi Mabindla-Boqwana to replace impeached judge John Hlophe as head of the Western Cape high court after interviews with five contenders from that court underscored how riven it remained two years after his suspension.
Mabindla-Boqwana, 51, said she had a vision to bring long-term stability to the division where she began her career as a judge about a decade ago and would “stick around” rather than seek promotion in the foreseeable future.
Questions in this regard were informed by her skill in diverse areas of law, her relative seniority at the SCA and the fact that Chief Justice Mandisa Maya had approached her to act at the constitutional court.
“Clearly your membership of the judiciary is something we should all be grateful for. The world is your oyster, so to speak,” asked Nico Boshoff, who was representing Western Cape Premier Alan Winde.
“What assurance do we have that five years from now you won’t be sitting here again?”
Mabindla-Boqwana replied: “What I would like to do is to have that division coming to stability that would make everybody happy about where it would be at the time, and I would not abandon the commission and simply fly away.
“Because this is not about my personal ambition … It is about people thinking we need you more here and me saying, okay, I am going to accept that call.”
She said she saw the immediate challenge in the Western Cape as “working towards change in how colleagues relate to each other” and fostering a culture of openness, transparency, cohesion and trust.
“I will visit each colleague in their chambers to find out what the issues are, to open communication channels between the head of the court and colleagues. We are human beings before we are judges.”
She added that she would also hold a “bosberaad, maybe with a facilitator” where problems in the division could be aired.
“My hope is that in those conversations we would be able to carve out a vision for the future of the division, short-term, medium- and long-term.”
Judge Patric Gamble, who was representing the division, asked whether there was not a risk that her “impressive” jurisprudence would take a back seat to the administrative duties that came with being a judge president.
But she said she did not regard leadership as being a matter of the minutiae of administration.
“I see it as a broader thing, because this is a leadership position where you set the tone.”
This applied to jurisprudence too, she added.
Mabindla-Boqwana has experience in human rights law, constitutional law and competition law. She stressed that her seven-year stint in the Western Cape also gave her considerable experience in criminal matters.
Gamble asked if she foresaw any difficulty in working with the incumbent deputy chief justice, Patria Goliath, who has been leading the division in an acting capacity since Hlophe’s suspension in late 2022, pending the finalisation of the complaint of gross misconduct that eventually saw him removed from the bench in March.
“Not at all, none from my side,” came the reply from the candidate who stressed that she has known Goliath for many years.
“I respect her … It is important that we work together and in a mature way, and that is something that I commit to do. There are no issues between us.”
Goliath was the first candidate to be interviewed for the judge presidency on Monday. That so many judges from the division were vying for the position, instead of collegially throwing their weight behind one of two candidates,betrayed the tension in the ranks.
Goliath’s interview did nothing to assure the JSC that this was not the case, or to persuade them that she could heal the wounds of the past.
The divisions are largely attributed to Hlophe but the damage is vast. The Judicial Conduct Tribunal is due to hear a misconduct complaint 10 colleagues filed against Judge Mushtak Parker. They accused him of lying under oath by deposing to an affidavit saying he had been assaulted by Hlophe, before retracting that version a year later.
The tribunal is also to hear a complaint Goliath filed against Hlophe, although his counter-complaint of racism has been dismissed.
Goliath made the error of responding defensively when asked by Maya and other commissioners how she would go about restoring harmony at the high court.
“There is nothing unique in the challenges this division faces,” she said at one point, and at another, insisted: “The division is not in disarray. The waters are calm.”
She resisted setting out a vision for the future, telling Maya: “I am not here today to only talk about what I can do for the division, I am here to talk about what I have already done.”
But Maya described the division as “notoriously troubled” and referred to a submission the commission received from a fellow Western Cape high court judge, Rosheni Allie, who described the measures Goliath had introduced as acting judge president as “ruinous to the running of the court”.
The concerns listed by Allie included that no minutes were taken at judges’ meetings and that the importance of the continuous roll has been compromised, hampering the workflow at the court.
Maya noted that the complaint also suggested that Goliath did not ask her fellow judges for input for heads of courts meetings and did not give feedback on decisions taken in this forum.
“How are things there really? And what do you have in mind to put them right if these accounts are true?” the chief justice asked.
“The general impression one gets from this submission [is] that the judges there do not have a voice really. You impose your views and decisions on them. You don’t consult.”
Goliath replied: “That is not a correct statement to make.”
Justice Andre le Grange, the acting judge president in the division, fared little better.
Maya was disconcerted when it emerged during his interview that he and Goliath had opted to defer putting in place a long-term strategy for the division until the JSC appointed new leadership.
“Whose decision was it to suspend fixing things until a permanent JP [judge president] is appointed when there are two people acting, and being paid the same amount as a permanent JP, and a permanent DJP, when there is one, will be paid to execute these duties for which you are appointed?
“Who took that decision to suspend the well-being of the division?” Maya asked.
Le Grange replied that he and Goliath had talked it over and reached that decision.
“To leave the court in limbo?” Maya asked.
Le Grange said that what was needed was dealing with “hard-core issues” and that it had been decided to leave this to the person who would ultimately be in charge of the division.
The commission on Tuesday interviewed 10 candidates for other vacancies in the division, which has a caseload second only to the Gauteng division. Neither division has enough judges, and the Western Cape is set to lose seven to retirement in the next two years.
It decided to recommend the appointment of Advocate Melanie Holderness and regional magistrates Mas-Udah Pangarder and Nontuthuzelo Ralarala to fill current vacancies.
Mabindla-Boqwana said she would call on retired judges not only to hold workshops, but to sit on complex cases so that they could transfer knowledge to younger colleagues.
“One of the things that I think might be important relates to criminal trials where we have a backlog. One of the things we could do is to recall, or ask retired judges or regional court magistrates who have retired to assist with backlogs perhaps, during the recess periods because of the shortage of courts that we might have during term.”
Several commissioners pressed candidates in the division on how they would help to further racial transformation at the bar.
Mabindla-Boqwana said the Western Cape was set apart by unique demographics, calling it “a different scenario to other places”.
“Other places you would be able to find a professional African person everywhere you go but in the Western Cape you don’t necessarily get them readily there.
“So one of the first things I would do is to interact with the legal profession so that we may go and find them because I believe that there are people in the corners. I was also found in some corner in Port Elizabeth,” she said.