Constitutional Court Chief Justice candidate, Judge President of the Supreme Court of Appeal (SCA) Mandisa Maya, said she does have a close relationship with the Judge President of the Western Cape Division of the High Court of SA, Judge John Hlophe. She said that in instances where she had to preside over those in the fraternity she had to pass judgment on she would recuse herself.
She was being quizzed on the difficulty of disciplining colleagues when the need arose as a Chief Justice, especially when dealing with colleagues in the judiciary.
“Judge President Hlophe is not even my friend. I was laughing to myself when I heard before the tribunal that other colleagues were invited to his wedding. I was not invited to his wedding. We don’t have that kind of relationship, but we have a close relationship,” Judge Maya said.
She said she had worked with Judge Hlophe when she was younger, and at the University of Transkei, now the Walter Sisulu University. She said they were youngsters who had just come back into the country, and were excited to do great things for the university.
”He was head of my department. Then he went to Cape Town and coincidentally I happened to start my judicial career there. When Ntsebeza (Dumisa) identified me, the person he would have spoken to was JP Hlophe, who was the Deputy Judge President in that court at the time,” she said.
Judge Maya said the matter was very sentimental and that Cape Town was a very difficult court. In the first week of her arrival, with another black acting judge, there was a huge article castigating their appointment.
“JP Hlophe was there to protect us and defend us.” She said when she started at the Cape Town Division, when she was “literally trembling”. Judge Hlophe was among the people who reassured her and comforted her.
“He said, ‘Hey, we are here to support you’, so I have that kind of relationship with him and people know that I started my judicial career there. So imagine if I sat in on a matter that involves him and, lo and behold, I found in his favour. Even the threat
of a perception, you know how it is ... judicial independence is a very delicate horse,” she said.
Judge Maya said when any cases came before her at the SCA involving Judge Hlophe, she made it clear that she had a prior relationship with him and she would be uncomfortable sit- ting in judgment of any of his matters.
“So I always avoided anything to do with him, but this is the only case that I avoided ... I explained to the JSC (Judicial Service Commission) ahead, that look, I can’t sit in on that one. I will send an alternate,” she said.
Commissioner Julius Malema asked Judge Maya if it was wrong if judges recused themselves from issues, whether the facts were right or wrong, for the sake of the image of the judiciary and perception.
He asked whether it would be the correct or wrong thing, and if it helped to enhance the image of the judiciary.
Judge Maya said it was actually part of the judges’ code of conduct to avoid anything that disrupts the institution. Even a perception that you might be biased would be detrimental, she said.