Three years after Acting Judge Henk Roelofse was recommended for a full-time position in the Mpumalanga High Court, an application to keep him from the bench by declaring him unfit for the position was dismissed by the deputy judge president of Gauteng on Monday, August 26.
The drawn-out court battle started shortly after 18 members of the Judicial Service Commission (JSC) voted in favour of his appointment on October 8, 2021, and three commissioners against it. Shortly after, the Mpumalanga Society of Advocates (MSA) brought an application to review the JSC’s recommendation and have it declared unlawful, invalid and unconstitutional.
In August 2023, local law firm Wiekus du Toit Attorneys (WDT) joined the application after he ‘fortuitously stumbled upon’ a civil judgment against Roelofse in favour of a local primary school for fees owed.
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In his August 6 judgment, the Gauteng High Court in Johannesburg’s Deputy Judge President Roland Sutherland set out the MSA’s case, which traversed a wide range of criticisms. The crucial issues aired in the hearing included whether the JSC erred in its October sitting by not considering the MSA’s written comments, which were submitted nine days after the deadline.
The MSA argued that their submissions were serious; their allegations against Roelofse alleged a lack of integrity in his financial behaviour, unjudicial temperament, and an alleged inadequacy of legal knowledge.
Roelofse has been a practising advocate since 2003 and for most of that time, has been a member of the Pretoria Bar. The judgment reflects that he played an instrumental role in founding the MSA when the Mpumalanga Division of the High Court was established in 2016.
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Court papers indicate that from 2018, Roelofse served several back-to-back terms as acting judge, which led to adverse financial implications for his practice as an advocate. In August 2019, he first applied for a vacant judgeship but was not recommended. No adverse comments were made against him during that process. In December 2019, he applied again but due to the Covid pandemic and lockdown regulations, the JSC interviews were delayed and they only convened again in April 2021.
In March 2020, however, the society submitted comments on his application and at the April 2021 sittings, Roelofse was not recommended. In June 2021, Roelofse again applied – for the third time. The deadline for comments on shortlisted candidates was September 13 and, despite the JSC having previously stated that late comments would not be considered, the MSA was nine days late in submitting its comments on Roelofse – which the court later ruled were similar to its previous comments about Roelofse.
The JSC voted in favour of his appointment in October 2021, and the MSA launched its application against the recommendation.
The MSA’s comments included claims that Roelofse was not in good standing with the society, was in arrears with bar fees, questioned his letter of good standing and raised allegations of impartiality, and questioned his independence and ability to conduct court proceedings.
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Sutherland said allegations of poor character were ‘bald opinions’.
In an affidavit Roelofse filed to respond to the allegations, he explained that he had shared all the allegations levelled against him by the society with the former judge president of the Mpumalanga High Court, Francis Legodi, the Legal Practice Council (LPC) and the JSC.
Sutherland stated that the JSC was fully aware of all allegations during their October sitting. “It is appropriate to be realistic about character references in any context of life. Too often a person is disparaged, sincerely, by critics who have trouble in backing up their opinions with concrete facts.”
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Roelofse’s appointment was supported by the Black Lawyers Association, the National Association of Democratic Lawyers, the General Council of the Bar, the Law Society and the LPC. “The JSC had the benefit of the perspective of Legodi JP, the head of the Mpumalanga Division, who had worked closely with the candidate during periods when the candidate served as an acting judge, and who expressed a positive perspective,” Sutherland commented.
In what is referred to as the ‘WDT Intervention’ in the judgment, the order of events as it relates to the firm’s allegations against Roelofse is detailed. Roelofse sought to resolve the issue between him and the MSA and met with their advocate, William Mokhare SC, who, according to Sutherland’s judgment, seemed positive about withdrawing the review case. However, an abrupt reversal of their position followed when WDT attorneys announced the discovery of a civil judgment against Roelofse and filed an application on August 24, 2023.
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This came after Roelofse had already resolved the matter with the school. The judgment was rescinded on March 20, 2023, when the school confirmed that all his debts had been paid in full.
Sutherland stated that WDT, unable to rebut the explanation that Roelofse had no knowledge of the judgment at the time of his application for the position, shifted their focus to the ’embarrassment’ caused by the since-remedied non-payment of school fees, an argument that did not hold water either. “WDT’s role is exceptional. Of no little importance is that the members of the firm WDT have an unhappy history of antagonism with the candidate. The shift in the thesis of the case; the notion of a community scandal, evidences a grasping at straws to sustain the materiality of the accusation.”
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The judgment held that WDT, having regard to the unhappy interpersonal history with Roelofse, could have passed the information on to the LPC or Law Society and not have become an antagonist in the review application.
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“The JSC guidelines on the selection of judges impose on the JSC the obligation to determine whether a person is fit and proper by means of a holistic assessment of a candidate’s suitability for appointment to the bench, with reference to a broad and cumulative reading of multiple factors which will include integrity, knowledge, scholarship, experience, dignity, humility, courtesy, judgment, wisdom, independence, character, courage, forensic skill, capacity for articulation, diligence, energy and industry. Character includes considerations such as whether a candidate is honest, truthful, trustworthy and whether they keep their word. This is what the JSC did, examining the warts along with the virtues of the candidate.”
