“Il-tempered” advocate can’t be a judge, court rules

The Supreme Court of Appeal has ruled that the Judicial Service Commission unlawfully recommended advocate Johannes Hendriks Roelofse for appointment as a judge. Photo: Brian Turner via Flickr (CC BY 2.0).

• The Supreme Court of Appeal (SCA) has ruled that the Judicial Service Commission (JSC) acted unlawfully when it recommended advocate Johannes Hendriks Roelofse for appointment as a judge.
• The court found the JSC failed to properly consider allegations about Roelofse’s judicial temperament and that he had not disclosed debts, including unpaid school fees.
• The SCA ordered the JSC to reconsider Roelofse’s candidacy in light of its findings.

The Supreme Court of Appeal (SCA) has declared unlawful a decision by the Judicial Service Commission (JSC) to recommend an advocate, who had regularly acted as a judge in the Mpumlanga division, for permanent appointment.

The court reviewed and set aside the JSC’s decision in October 2021 to recommend to the President that he appoint Johannes Hendriks Roelofse.

It directed that the JSC “reconsider” Roelofse’s candidacy “bearing in mind the findings of this judgment” that the JSC had not considered relevant issues, including Roelofse’s temperament, and that he did not disclose that he owed money for school fees and to the Mpumulanga Society of Advocates (MSA).

Roelofse, an advocate practising since 2003, had served as an acting judge from 2008. He was interviewed by the JSC three times for permanent appointment.

In 2019, he was not recommended for appointment but there were no adverse comments about him.

In 2020, prior to being interviewed again, the MSA objected to his appointment, saying he owed Bar fees for more than two years, and “being aware that he would not get a letter of good standing” from the society, had circumvented this requirement by seeking one from the local Legal Practice Council. The MSA said this was dishonest.

The MSA also said that Roelofse lacked the necessary “judicial temperament” and that he was disruptive and abrasive in court.

The MSA said in March 2020 that it had charged him with misconduct.

Included in those charges was that he did not disclose to the JSC (in his 2019 interview) his outstanding debt of more than R241,000 for which he had been “handed over to attorneys for collection”.

Roelofse responded by resigning from the MSA with immediate effect.

Because of the covid pandemic, the 2020 JSC interviews took place in April 2021.

The commissioners challenged Roelofse on the complaints against him. Ultimately, it did not recommend him for appointment.

Roelofse was interviewed again in October 2021.

The MSA again objected, but its written representations were submitted late and were not brought to the attention of the JSC.

Justice Tati Makgoka, in the SCA ruling, said most of the questions posed to Roelofse were uneventful. However, there were two notable exchanges, one in which Roelofse indicated that it “was time” for a white man to be appointed in the division and interrupted the commissioner. In another exchange, he seemingly lacked knowledge of the law.

In an 18-3 vote, the JSC recommended him for appointment.

This decision was, however, put on hold after the MSA launched legal proceedings to review the decision.

The matter was first heard in the Johannesburg High Court before Judge Roland Sutherland at which the issue of Roelofse’s unpaid school fees was raised for the first time.

Sutherland dismissed the application.

The MSA appealed to the SCA.

SCA upholds appeal

Justice Makgoka said Judge Sutherland had misconstrued the facts when finding that it did not matter that the JSC had not seen the MSA’s objections in October 2021, because it had already considered them in April that year.

He said it was clear that in the former interview, the complaints about Roelofse’s temperament had not been canvassed and it “remained an issue”.

“Despite this, (Roelofse’s) temperament was on full display in October, as evidenced by his ill-tempered exchanges with (advocate) Griffits Madonsela.”

Justice Makgoka said the high court had “brushed this aside and blamed Madonsela”, who had been offended by Roelofse’s earlier remark that it was time for a white person to be appointed.

The high court also found that Roelofse’s conduct could be blamed on the fact that Madonsela had called him a “fugitive from justice”, a reference to his resignation from MSA after he was charged.

Justice Makgoka said he did not consider the high court’s assessment of the exchange as being fair and even-handed and Roelofse’s conduct had confirmed “in real time” the MSA’s complaint about his temperament.

Justice Makgoka said he had difficulty with the high court accepting Roelofse’s explanation that his debts were due to his “dwindling and dissipating” legal practice because of his spells as an acting judge.

Even if he had disclosed to the JSC, it would not have dissuaded it from recommending his appointment, the high court had found.

These debts should have been disclosed, Justice Makgoka said, “and it is not within a court’s remit to say how the JSC would have dealt with the issue if it had been disclosed”.

“Had he declared the debt, the commissioners might have probed how, on an (acting) judge’s salary, he was unable to pay his child’s school fees.”

Justice Makgoka said judicial temperament was a central attribute of a judge and the JSC’s failure to consider this meant its decision should be set aside.

The SCA upheld the appeal, declared the JSC decision unlawful, invalid and unconstitutional, and remitted the matter back to it for reconsideration.

Support independent journalism
Donate using Payfast