While acting at the KwaZulu-Natal High Court in 2015 Topping has dealt with dodgy builders and over-bearing luxury housing complex body corporates, among others.
In eThekwini Municipality v Bhardwaj Topping sentenced an unscrupulous property developer to 30 days in prison (suspended for two years) for failing to comply with town planning and statutory building provisions. The builder was also in contempt of a court order preventing the continued development of a “warehouse” on the site and was ordered to tear down the structure.
When a multimillionaire home-owner at a luxury estate north of Durban challenged the complex’s speeding limits and fines system, rules regarding access for domestic workers and a specific list of builders to be used by residents for on site alterations and refurbishments, Topping ordered him to suck it up.
He found that businessman Niemesh Singh had “contractually bound himself to live within a controlled environment” and the specific rules he complained about in fact were lawful.
Fluent in isiZulu, Topping dropped out of school to support his family and completed matric via night school before putting himself through university. He unsuccessfully interviewed for a position at the KZN Bench in April 2017.
An advocate for several years, Topping was conferred silk in 2015.
April 2018 Interview:
April 2018 Interview Synopsis:
A large portion of Advocate Ian Topping’s interview dealt with his work in medical malpractice cases. More specifically, the large pay-outs by the state in such cases and the bags of cash that legal practitioners appear to make from these matters.
Chief Justice Mogoeng Mogoeng voiced his “worry” about contingency fees for such cases, where compensation often ran into millions of rands. He felt payment to lawyers were “a bit on the high side”. Topping said as far as he recalled the Contingency Act allowed for fees of between 20-25% of the settlement or double the fees that attorneys usually charge, whichever was lower.
Mogoeng then appeared more interested in ensuring the public could “sit back comfortably” assured that the state was “not being over-milked” by money-grabbing lawyers than the candidate’s readiness for appointment to the KwaZulu-Natal High Court. So the medical observations dragged on for a bit longer.
And then a bit more: Justice Minister Michael Masutha wondered whether a “medical aid-type” scheme could be set up for malpractice claims. This was so that once claims on future medical expenses have been established the state would then give the assurance that they would satisfy it — so as to bring down the costs lawyers sometimes had to cover for medical experts and doctors and subsequently, their legal fees.
Topping thought this sounded like a “cumbersome system”.
The ANC’s Jomo Nyambi provided a little relief from the medical examination which, at times, appeared more painful, and far less probing, than a visit to the proctologist. He asked Topping if there was anything, since his last interview, which was new and pertinent for the commission to consider.
Topping said he was more mature now, having heard more cases in the high court, especially noting land claim cases, and he had also been appointed the pupil mentor at the Durban Bar since his last appearance before the commission in April 2017. Otherwise, “nothing material has happened in my life,” he told the commission.
According to Topping, his contribution to transformation at the Durban Bar included ensuring that since he was conferred silk in 2015 he enlisted juniors of different races, expect for a recent case when a white junior had been appointed to him by clients.
Topping told the commission that if he was passed over for a black or female candidate he would understand. He was.
October 2016 Interview:
October 2016 Interview synopsis:
Race and race relations in KwaZulu-Natal was again to the fore in the third and final interview for the high court vacancy in that province.
Advocate Ian Topping SC seemed to be having a relatively easy interview until, towards the end, Economic Freedom Fighter’s member of parliament Julius Malema pushed him on his recollection of his childhood growing up on a farm where he learnt the Zulu language and its culture and customs.
Topping, who has “a working knowledge of Zulu”, had recalled only having black friends until the age of twelve, and growing up at the feet of their parents which proved “formative of how I treat people and different cultures” — both in and out of court.
Malema started quizzing Topping on his knowledge of rituals and practises linked to ceremonies like a Zulu customary marriage. Topping apologetically professed to having no knowledge of these customs. Malema responded that “friends” would be au fait with that sort of detail before he stepped up the onslaught by suggesting there were other power dynamics inherent in Topping’s nostalgia that the lawyer appeared oblivious to, and that his recollection was “patronising and bordering on racism”.
“Sharing a farm doesn’t mean you grew up together,” said Malema who was unequivocal that Topping needed to check his privilege and how he presented his childhood to the Judicial Service Commission.
Topping, who had previously interviewed for judicial appointment in April 2016, was then asked by Advocate Ismail Semenya why he wanted to be a judge: “I think, honestly, because I can make a positive contribution,” he responded, adding that he felt he had the requisite experience, temperament and qualifications to do the job well.
When asked by Acting Deputy Chief Justice Bess Nkabinde how he, as a judicial officer, struck that “delicate balance” in his judgments so as to ensure the separation of powers doctrine was observed, Topping stressed it was essential to stay “within the confines of the law” since whether one was a member of the judiciary, executive and the legislative “you know what you are allowed to do…”
April 2016 Interview:
April 2016 Interview Synopsis:
Topping seemed to impress the commission with his spilling of isiZulu, which flowed like the Howick Falls. But that wasn’t enough to get him nominated.
He had learnt the language while growing up on a farm, said Topping, who recounted the ups and downs of his early life, which included having to drop out of school at the age of 16 when his father fell ill to work in the family bakery. He then completed his matric through night school. When Topping finally matriculated, the business went under, and he then had to put himself through university.
When asked by KwaZulu-Natal Judge President Achmat Jappie how his appointment would impact on the need to transform the division, he said: “One can see I am white, I can’t take it any further than that” but that his linguistic ability meant that “I can communicate at their [the litigant’s] own level.”
Topping said his linguistic abilities allowed him to communicate “at the level of the litigant” – which would assist in the transformation of the courts – despite him being a pale male.
Responding to concerns raised by Supreme Court of Appeal President Lex Mpati that he was getting on in years (Topping is 61), the silk responded that “he was young at heart” and and active person who would probably continue working until he “keeled over”.