SCA sets aside JSC recommendation for Mpumalanga judge appointment
The Supreme Court of Appeal (SCA) has set aside the Judicial Service Commission’s (JSC) 2021 recommendation to appoint advocate Henk Roelofse as a judge in the Mpumalanga High Court, finding that the decision was unlawful because relevant information about his suitability was not properly considered
The JSC must reconsider Roelofse’s candidature, this time taking into account the information – which was critical of Roelofse – that it previously failed to consider. The judgment follows a legal challenge launched by the Mpumalanga Society of Advocates (MSA) in November that year.
They believed that the JSC, the body responsible for recommending judicial candidates to the President for appointment to the country’s courts, had erred. Their application to have it set aside was dismissed in the Gauteng High Court two years ago, but has now succeeded.
As Lowvelder previously reported, the MSA alleged that Roelofse had failed to pay substantial Bar membership fees, had improperly obtained a letter of good standing from the Legal Practice Council instead of the MSA, and had failed to disclose a civil judgment against him relating to unpaid debts including school fees.
His conduct on the bench was also central to the MSA’s concerns. They alleged that he frequently interrupted legal representatives in court and was impatient, stating that he lacked the temperament associated with a judicial officer.
The society’s concerns were submitted to the JSC after an administrative deadline, and were therefore not circulate and considered before Roelofse’s recommendation for appointment.
This, the SCA found on July 7, was a material procedural irregularity that resulted in the JSC not considering these objections during the April and October 2021 interviews that led to his recommendation. The SCA emphasised that it was not the role of the courts to decide whether Roelofse should be appointed as a judge.
Instead, it held that the JSC, as the constitutionally designated body responsible for judicial appointments, shou have made that determination after considering all relevant information which the court found had not been considered.
The appeal court concluded that the JSC’s recommendation was unconstitutional, unlawful and invalid. Each party was ordered to pay its own costs. Despite being disappointed with the outcome, Roelofse describes his time as an acting judge as the highlight of his legal career.
“It was a great privilege to serve the law and my community,” he said about having the opportunity to play a role in the Lowveld and the province’s jurisprudence.
In considering the SCA’s response to his seemingly temperamental conduct during the JSC interviews, Roelofse said: “I reacted in the extreme situation of the interview. I could have handled it differently and perhaps that moment was not a reflection of who I really am. After all, judges are human, too”
He further stated that he will shift his focus on serving the legal profession via technological and artificial intelligence tools. Earlier this year, Lowvelder reported that he had launched Ask Cecile, an artificial intelligence-powered legal information platform designed to make basic legal information more accessible in multiple languages.
“I am a servant of the law and the law is my master,” he concluded.
