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Judge Trevor Gorven

Candidate Profile:

A high court judge in KwaZulu-Natal, Gorven drops Plato and Juvenal when “lament[ing] the corrosive effect of corrupt police and judicial officials” in cases involving good cops phone-tapping bad cops who are running with drug syndicates.

He has demonstrated a sensitivity to the underlying phenomena linked to gender-based violence and rape in South Africa — including the proprietorial attitude of men to women with whom they are, or have been, in relationships with. This was apparent in Gorven deciding and sentencing in matters like S v Mathe (KZN High Court), which involved a policeman who shot and killed an ex-lover in a taxi.

Coruscating in his criticism of then acting national director of public prosecutions (NDPP), Nomgcobo Jiba, Gorven chucked out murder and racketeering charges against KwaZulu-Natal Hawks boss, Major-General Johan Booysen in 2014. Booysen had been linked to the Cato Manor Organised Crime Unit, which was accused of being a death hit squad.

Noting Jiba’s “defeaning silence” in response to Booysen’s assertion of mendacity, Gorven, in a judgment of the high court in Durban, declared the decision to prosecute Booysen to be irrational.

“Even accepting the least stringent test for rationality imaginable, the decision of the NDPP does not pass muster,” he wrote. “I can conceive of no test for rationality, however relaxed, which could be satisfied by her explanation. The impugned decisions were arbitrary, offend the principle of legality and, therefore, the rule of law, and were unconstitutional.”

The judgment raised stark questions about Jiba’s suitability for the job, especially her penchant for not prosecuting cases related to former president Jacob Zuma. Zuma, in turn, appeared to bestow his executive protection upon Jiba. In 2016 Jiba was struck off the roll of advocates precisely because of her handling of matters involving “Msholozi”.

During an impressive but ultimately unsuccessful interview for a position at the Supreme Court of Appeal (SCA) in 2016, Govern made known his thoughts that judges needed to write judgments expeditiously and “in a clear way” so that they are accessible to the general public and that the judiciary should not shirk its responsibility of delivering “firm” and swift justice.

An example of this was the Minister of Home Affairs and Others v Saidi and Others matter which was heard and decided on 31 March 2017. At issue was whether a refugee reception officer had the powers to extend the permits allowing asylum seekers to remain in South Africa while their refugee status was being determined and after internal remedies at reception centres had been exhausted. The court also dealt with the question of whether permits with the internal processes.

Writing with a full Bench concurring, Gorven found that there was nothing in the Refugee Act which limited the power of reception officers to extend permits. He also wrote that permits were not issued “in order to lapse once the internal remedies are exhausted”.

Describing Section 39(2) of the Constitution as the “bedrock principle of interpretation requiring courts” to interpret law so as to “promote the spirit, purport and objects of the Bill of Rights”, Gorven confirmed he is no legal formalist.

Noting that the Constitution required judges to read law in ways which would advance an identifiable value enshrined in the Bill of Rights, as long as these were reasonably capable of such interpretation, Gorven concluded that the relevant sections of the Refugee Act “is at least capable of the interpretation that the RRO is empowered to extend permits after the internal remedies have been exhausted. The rights to bodily integrity, just administrative action and access to courts are immediately identifiable values which would be advanced by this interpretation. These would be placed at risk if the asylum seekers are returned for no other reason than that the internal remedies have been exhausted in circumstances where judicial review proceedings have been launched.” The appeal and cross appeal were both dismissed with costs.

Having previously worked as a prosecutor, Gorven joined the Pietermaritzburg Bar in 1988 and was conferred silk in February 2006. His interests include most areas of civil law and he has been involved in training advocates. In a previous, unsuccessful interview for a position at the SCA in 2015, he had told the Judicial Service Commission about one of his pupil advocates, a young black woman determined to succeed against the odds — which included losing her father to the political violence in KZN in the 1980s — and having to solely raise her younger siblings while putting herself through law school. She eventually left the legal profession because skewed briefing patterns in the country favoured white males.

During his unsuccessful 2016 interview for a position at the appellate court, former commissioner Dumisa Ntsebeza SC tested Gorven’s views, as a pale male, on the transformation imperatives the commission faced in ensuring the judiciary had more black and female judges.

The judge said he had no issues with that, but also suggested that his appointment would allow him to actually use his knowledge and experience to assist female and black juniors from within the appellate court.

 

April 2018 Interview Synopsis:

KwaZulu-Natal High Court judge Trevor Gorven’s experiences acting at the Supreme Court of Appeal (SCA) placed in stark relief the problems and prejudices facing judges who are any, or all, of black, female, come to the judiciary through the magistracy, and considered by senior judges to be of an inferior intellect.

Gorven — pale, male and evidently a fine lawyer and judge — talked about the “warm” reception and “open arms” which greeted him during his acting stints at the SCA.

He told the commission he “dealt with a variety of cases” during these stints and found the atmosphere “collegial” and “stimulating”. Gorven said his colleagues “affirmed me in what I was trying to do”, which he felt was partially responsible for the 14 reported judgments he penned during those acting stints.

A testimony in stark contrast to some of the experiences expressed by other judges who have acted at a division that could be mildly described as brusque, haughty and hierarchical. Their evidence suggests that the SCA can sometimes be as welcoming as an American high school canteen where the self-ordained ‘cool kids’ may be packing semi-automatic weapons.

Gorven said he would “fill a gap at the SCA” because of the breadth of his legal experience.

SCA president Mandisa Maya said she had sat “on a number of occasions” on the Bench with Gorven and observed that he was “very helpful to colleagues, especially juniors” and knew that he was “deeply committed to transformation”, before asking an “unfair question”: What would he advise the commission regarding transformation and making appointments considering there were three vacancies and four of the candidates were women?

Gorven intimated that he would have no problem if women were appointed because “obviously there needs to be full gender representation” but did stress that even as a white male he could “contribute to transformation by assisting junior acting judges in “finding their feet” and “deepening their understanding” of the law and adjudication.

Gorven later said that transformation of the legal fraternity was “slow in absolute terms” but that was partially understandable because skewed briefing patterns hindered transformation all along chain: from young black and female lawyers only being exposed to certain types of work while practising which then impacted on the kinds of cases they were given when acting on the Bench.

He was asked by Mvuso Notyesi, one of two lawyers representing the attorneys’ profession on the commission, about the “tendency” of the courts to “import” common law principles into matters where the sole application of customary law was required by the Constitution.

Gorven said there needed to be “careful and sensitive development” of customary law and that he had assisted (proof read and provided notes on) KwaZulu-Natal deputy judge president Mjabuliseni Madondo’s upcoming book which dealt with exactly that.

This is the third time that Judge Gorven is being interviewed for the SCA, and Justice Maya asked him if he would apply another time if he was not appointed in this round. Judge Gorven said he could not say anything about his decision at this stage. It may be three times will need to be a charm if the SCA is to benefit from Judge Gorven’s experience.

 

 

April 2016 Interview:

April 2016 Interview Synopsis:

The Judicial Service Commission sat well past midnight on Monday to interview candidates for the Supreme Court of Appeal, so as to accommodate members of parliament who needed to be in the national legislature on Tuesday to discuss the potential impeachment of President Jacob Zuma.

So, it was no surprise that some politicians on the Judicial Service Commission used whatever gap during interviews to have a dig at the country’s beleaguered commander-in-chief. Leading the charge was the Economic Freedom Fighters own commander-in-chief, commissioner Julius Malema.

“What would happen to our democracy if the arms of the state were used to second guess or deliberately ignore judgments?” he asked Govren very early on in his interview.

“Ultimately, there would be a failure of democracy,” replied Gorven, elucidating on the Constitutional obligations of public office bearers, including judges.

With last week’s Constitutional Court judgment that found Zuma had acted in breach of the Constitution over the Public Protector’s Nkandla report hanging in the air, Malema wanted more. He pushed Gorven on whether judges could rule on whether public officials were “unfit to hold office” and cited the Constitutional Court judgment that found Zuma had been irrational in appointing Menzi Simelane as national Director of Public Prosecutions, as an example of this sort of judicial reach.

Gorven responded that he was “not sure if that was part of the order” or “part of the reasoning in the judgment”.

Commissioner Dumisa Ntsebeza SC tested Gorven’s views, as a pale male, on the transformation imperatives the commission faced in ensuring the judiciary had more black and female judges. The judge said he had no issues with that, but also suggested that his appointment would allow him to actually use his knowledge and experience to assist female and black juniors from within the appellate court.

In an erudite and impressive interview Gorven made known his thoughts that judges needed to write judgments expeditiously and “in a clear way” so that they are accessible to the general public and that the judiciary should not shirk its responsibility of delivering “firm” and swift justice.

Allied to a good showing in the interview, Gorven also has an impressive body of judgments, so it was a surprise when the JSC — if they were to appoint a pale male, as they did — announced that it had chosen not to nominate him.

Gorven, is evidently smart. He drops Plato and Juvenal when “lament[ing] the corrosive effect of corrupt police and judicial officials” in cases involving good cops phone-tapping bad cops who are running with drug syndicates.

He has demonstrated a sensitivity to the underlying phenomena, including the proprietorial attitude of men to women with whom they are in relationships,  in  deciding and sentencing in gender-based violence and murder cases like S v Mathe (KZN High Court), which involved a policeman who shot and killed his ex-lover in a taxi.

Coruscating in his criticism of then acting national director of public prosecutions, Nomgcobo Jiba, Gorven chucked out murder and racketeering charges against KwaZulu-Natal Hawks boss, Major-General Johan Booysen in 2014. Booysen had been linked to the Cato Manor Organised Crime Unit, which was accused of being a death hit squad.

Noting Jiba’s “defeaning silence” in response to Booysen’s assertion of mendacity, Gorven, in a judgment of the high court in Durban, declared the decision to prosecute Booysen to be irrational.

“Even accepting the least stringent test for rationality imaginable, the decision of the NDPP does not pass muster,” he wrote. “I can conceive of no test for rationality, however relaxed, which could be satisfied by her explanation. The impugned decisions were arbitrary, offend the principle of legality and, therefore, the rule of law, and were unconstitutional.”

The judgment raised stark questions about Jiba — who is currently a deputy director at the prosecuting body and seemingly enjoys the protection of President Jacob Zuma — and her suitability to the job.

Having previously worked as a prosecutor, Gorven joined the Pietermaritzburg Bar in 1988 and was awarded silk in February 2006. His interests include most areas of civil law and has been involved in training advocates. In a previous, unsuccessful interview for a position at the SCA, he had told the Judicial Service Commission about one of his pupil advocates, a young black woman determined to succeed against the odds — which included losing her father to the political violence in KZN in the 1980s — and having to solely raise her younger siblings while putting herself through law school. She eventually left the legal profession because skewed briefing patterns in the country favoured white males.