Deep divisions between judges at the Cape High Court have been exposed since Judge President John Hlophe angrily criticised his colleagues on the Bench for resisting transformation, and the apparent involvement of Deputy Judge President Jeanette Traverso in the affair now raises questions about the progress of the case that sparked the row.
Pharmacists represented by the Pharmaceutical Society of South Africa (PSSA) and New Clicks have been waiting nearly three weeks to hear from the Cape High Court whether they may appeal its earlier decision upholding the regulations.
In a split decision, a full Bench of the court originally found for the state, with Judge Hlophe and Judge James Yekiso in the majority, and Judge Traverso dissenting.
The split judgement is, in itself, not unusual, but considerable controversy has ensued since Judge Hlophe concluded the appeal hearing that followed with a warning to those he said were responsible for “insulting” rumours that he, rather than Judge Yekiso, had written the majority decision.
Coming amid widely acknowledged tension over transformation in the legal system, the remarks were interpreted by many as a warning to white advocates, some of whom are said to lack respect for recently appointed black judges.
Hlophe has since gone on to complain in interviews of “a calculated attempt to undermine the intellect and talent of African judges”, but it has now become clear that his anger was also directed at his colleagues on the Bench, and it seems his remarks about the authorship of the judgement may have been intended for Judge Traverso.
Judge Hlophe did not respond to requests for comment, and has declined publicly to name the judge he maintains is responsible for the rumours, but it is difficult to draw any other conclusion in the context of the court record and an investigation into the issue by the General Council of the Bar (GCB).
GCB chairperson Norman Arendse was on Tuesday handed a report into the affair, and says it makes it clear that advocates are not to blame for the rumours. “The report mainly concerns who started this rumour. It does not emanate from the Cape Bar or from any practitioner involved in the pharmacy case.”
The only judges present when Judge Hlophe made his remarks were members of the panel hearing the case: Judge Yekiso and Judge Traverso. This has led observers at various levels of the legal profession to conclude that when Judge Hlophe complained about “talks at the Bar and on this Bench” and warned that “those who are responsible [for the rumour] must desist”, he was most likely addressing Judge Traverso.
However, one senior attorney who knows both judges said he could discern no sign of tension. “I think it’s highly unlikely that he was talking about Jeanette Traverso: they get on well socially and otherwise.”
No one with whom the Mail & Guardian discussed the issue had come to this conclusion either. However, as one black advocate unconnected to the case said, “It’s not surprising they got it wrong. After all, Traverso was sitting right next to him.”
Judge Traverso did not reply to a message left with her office, but the row has occasioned speculation about the reasons for the court’s delay in ruling on leave to appeal in the case.
At the appeal hearing advocate Wim Trengove argued on behalf of the PSSA that leave should be granted on the grounds that Traverso’s dissenting judgement proved that this was a matter over which “judges may legitimately differ” — ordinarily the basic test of whether an appeal should be allowed to proceed.
Several attorneys sympathetic to the pharmacists’ case said it was strange that, under these circumstances, judgement should have been reserved for so long.
“He should have just said: leave to appeal is granted, reasons will be provided later,” said one attorney. “I can’t remember another case where there was dissent from a senior judge and judgement in the appeal was reserved.”
Another attorney countered that Judge Hlophe may have decided that he disagreed with Trengove on the test, and could be taking his time writing a judgement to that effect.
The legal teams representing New Clicks and the PSSA had hoped to have their appeal heard at the Supreme Court of Appeal in Bloemfontein during its current session, but the court cannot hear the matter until judgement in the appeal is delivered.
As the M&G reported a fortnight ago, state attorney Gadija Berhardien has written to the registrar of the Constitutional Court arguing that the matter should be heard there, and calling into question the commitment of pharmacists to a speedy resolution.
The M&G spoke to several lawyers with different attitudes to the transformation debate, but none of them was prepared to be quoted on the record on the merits of the appeal or the reasons for the delay, citing the sensitivity of the current situation.