Marianne Merten
Minister of Justice and Constitutional Planning Penuell Maduna failed to consult the country’s most senior judge, Chief Justice Ismail Mahomed, when he sought to extend the tenure of Judge Edwin King, the judge president of the Cape.
This emerged during a week of controversy surrounding Maduna’s decision to extend Judge King’s tenure – a move some lawyers have interpreted as an attempt to keep Deputy Judge President John Hlope from the top job on the Cape Bench.
Lawyers have speculated that Maduna and his senior African National Congress colleagues are wary of Judge Hlope’s track record of independence from the ANC.
Maduna’s intervention stands in sharp contrast to the government’s aggressive efforts to promote black judges to top positions across the country.
Judge Mahomed this week confirmed that Maduna had consulted neither himself nor the Judicial Service Commission (JSC), which manages appointments to the Bench, before seeking to extend Judge King’s term to October 2000. “It would probably have been better if this had been done,” Judge Mahomed said, adding: “It is considered undesirable to express my personal views on the decision of the minister.”
Speaking on behalf of the chief justice and the JSC, advocate Milton Seligson said Maduna had consulted the chief justice when extending Judge King’s mandate on a previous occasion.
Judge King (70) had been due to retire in April, but Maduna sought to extend his term until October. Judge King himself scuppered Maduna’s plans when he decided to retire after all, as planned, in April.
Judge Hlope was tipped by many lawyers for the Cape judge presidency in October 1998, when the JSC interviewed candidates for the post during a round of public hearings. Judge Hlope was trounced by Judge King, despite the fact that Judge King had only 18 months ahead of him before retirement.
At the time, the JSC’s decision was greeted with speculation that Judge Hlope had failed to endear himself to the ANC- aligned contingent on the JSC.
Judge Hlope’s rejection in October 1998 was the only exception to a batch of judicial appointments that signalled that race had replaced seniority as the most important criterion where appointment to the Bench was concerned.
But many lawyers brushed off his failure to make the top job, saying the JSC had merely taken the wise decision to allow Judge King to mentor Judge Hlope for 18 months before taking up the job.
It has been long known that Judge King and Judge Hlope have not seen eye to eye on several issues and that their working relationship has been strained.
Judge Hlope has openly criticised the pace of transformation on the Cape Bench under Judge King.
Judge King – who is credited with an impressive human rights background and sound judgments over decades – is understood to be angry that Judge Hlope, an academic who was only appointed as judge in 1994, stood against him as judge president.
Judge King reached the mandatory retirement age of 70 in September and will have served 15 years on December 26. According to the Judges Remuneration and Conditions of Employment Act, unless Judge King agreed otherwise he could only be obliged to serve for a maximum of three months each year until he turned 75.
Maduna’s representative confirmed that Judge King had decided to retire in April after all, but declined to comment further.