Capacity: Advocate
First admitted as advocate: 1995
Gender: Male
Ethnicity: White
Date of Birth: 3 November 1956
Key judgments:
- University of Stellenbosch Law Clinic and Others v National Credit Regulator and Others (14203/2018) [2019] ZAWCHC 172; [2020] 1 All SA 842 (WCC)
- Mgidlana v Speaker of the National Assembly
- Brittania Beach Estate (Pty) Ltd v Rurik Craig McKaiser
Candidate Bio:
During his student days at the University of Cape Town (UCT), Advocate Brian Hack was charged with two others, under the Terrorism Act, of the attempted shooting of Progressive Federal Party leader Colin Eglin.
He was eventually acquitted, but it would be interesting to see how one of the leaders of the Conservative Students Alliance, which was formed to wrest control of UCT’s Student Representative’s Council (SRC) from progressive elements in 1977, fares with a Judicial Service Commission (JSC) which often has little time for apartheid’s reactionary types.
Hack is another acting judge referred to, without being named, in Western Cape High Court Deputy Judge President Patricia Goliath’s complaint against the division’s judge president, John Hlophe.
One of the main thrusts of Goliath’s complaint against Hlophe is that there is a lack of transparency and consultation in the appointment of acting judges with neither her, nor fellow senior judges, consulted. According to Goliath, Hlophe’s wife, Gayaat Salie-Hlophe, who is also a judge in the division — and confirmed to be a friend of Hack, who attended the Hlophes’ wedding — holds great “power” in this regard.
According to Goliath’s complaint, Salie-Hlophe not only recommends lawyers for acting appointment, but also on their reappointment: “If Salie-Hlophe has some issue with him or her that person will not be reappointed.”
Goliath also claimed that Salie-Hlophe had ensured an advocate she shared “school mum duties” with was given an acting post and that some judges at the Western Cape High Court are “afraid of her” and the power and influence she wields.
The division has long descended into tawdry farce with allegations that sexual misconduct, physical violence, the isolating of senior judges, and a refusal by ten judges in the division to share full Bench panels with one of their colleagues, Mushtak Parker, pushing it to the brink of collapse. The ten judges have refused to work with Parker on the grounds that he changed his testimony, under oath, about an alleged physical altercation with Hlophe.
Hack has acted for three terms each in the last two years.
During that time he delivered judgment in the 2019 matter ABC Proprietary Ltd v Commissioner of the South African Revenue Service which dealt with the application of double taxation agreements.
ABC resided and was a registered taxpayer in South Africa but the owner of its shares was a company that was resident and a taxpayer in the Netherlands.
ABC declared dividends and the shareholder made a declaration that it owed 5% tax, which was paid to the South African Revenue Service (SARS).
The shareholder subsequently took the view that this was incorrect, and that the tax rate was 0%. SARS refused to refund the payment.
ABC argued that it was not liable to pay tax to South Africa on dividends paid to its Netherlands shareholder, in terms of the double taxation agreement (DTA) between the two countries, specifically because of a “most favoured nation” clause in the treaty.
Hack identified the core argument of the respondent as being that:
“South Africa made a decision to change its tax system in regard to the payment of tax on dividends. This was properly and legitimately motivated to bring it in line with other countries including in particular its principle trading partners. It studiously, timeously and with considerable effort renegotiated the terms of existing DTA agreements. The various amending protocols or new agreements contained terms which are virtually identical but some countries sought minor variations.
“When negotiations on all such amendments had been finally concluded South Africa amended its law. It anticipated that the countries, and in particular Kuwait, who had concluded agreements with South Africa would imminently ratify the agreements despite the fact that this had not yet happened.
“The oral evidence was that South African has vigorously used all possible avenues to remedy the situation. Respondent … argued that the appellant is now exploiting what is an entirely unanticipated, unforeseen and unfortunate occurrence to refuse to pay tax in South Africa despite the fact that the contracting parties (South Africa and the Netherlands) never meant this to happen. The consequences are potentially financially disastrous for South Africa. Respondent … relies on persuading the court that it needs to emphasize the true intentions of South Africa in entering into the agreements and act to prevent the consequences of what has or will occur as a result of the failure of Kuwait to ratify the protocol [sic].”
Hack upheld the appellant’s argument, based on Supreme Court of Appeal authority, that the court should not take into account evidence led by the respondent regarding the intention of South Africa, the Netherlands, Sweden and Kuwait in considering whether the appellant was liable to pay tax in South Africa. Hack accepted that the provisions of the Netherlands agreement were clear, and provided that if another state receiving preferential treatment from South Africa in the future, the Netherlands resident had to be given the same preference.
“[T]here are therefore no grounds upon which this court can find that certain words were missing from the Netherlands’ agreement unless the court jettisons the parol evidence rule. This court cannot do so. It is bound by the rule and prevailing decision of the Supreme Court of appeal. …”
SARS was ordered to refund the overpaid dividends tax
April 2021 Interview:
If the public needed any reminder of how principle and conscience so often appears a malleable concept for members of the Judicial Service Commission (JSC) — especially when petty personality politics come into play — then it arrived with the second interview for vacancies at the Western Cape High Court.
Advocate Bryan Hack is the personal counsel for Western Cape High Court judge Gyaat Salie-Hlophe, the wife of the division’s judge president, and there have been suggestions that his acting stints were been linked to that relationship.
According to the complaint against Hlophe by his deputy, Patricia Goliath, which details her various concerns at the division, Hack has enjoyed “long” acting stints in the division and “his presence underlines the power which Salie-Hlophe wields”.
There is nothing in Hack’s CV regarding his membership of any progressive organisations, very little in his record as a lawyer going back to the 1980s or his judgments while acting in the Bench, to suggest any activism that is anti-apartheid, pro-poor, pro-queer or pro-Black.
Instead, Hack has a chequered history that suggests support for the apartheid status quo. As a student, he was charged, under the Terrorism Act, for the attempted shooting of Progressive Federal Party leader Colin Eglin in the 1970s. He was eventually acquitted.
Likewise, he was one of the leaders of the Conservative Students Alliance (CSA), which was formed to wrest control of the University of Cape Town’s Student Representative’s Council (SRC) from the liberal progressive National Union of South African Students in 1977 — a year after police murdered schoolchildren during the uprisings of 16 June.
Yet, because his interview was considered a proxy struggle between those on the JSC who support the scandal-ridden Hlophe and those against the judge president, he was treated with a special deference by commissioners like Economic Freedom Fighters leader Julius Malema.
Malema and others approached Hack with such reverence, it gave the impression that the advocate was struggle royalty and had spent time on Robben Island after being tortured at John Vorster Square and before personally drafting the entire Constitution himself. In a single night.
A far cry from the treatment meted out to black women like Judge Dhaya Pillay and Judge Fayeeza Kathree-Setiloane who had been activists during apartheid, and, in Pillay’s case, represented scores of political activists in the 1980s, when many faced the possibility of the death penalty.
Unlike Hack, these black women were badgered and bullied by Malema during this sitting of the JSC, without censure by Chief Justice Mogoeng Mogoeng.
Hack on the other hand was allowed to breezily dismiss the CSA as a gathering of a few people having a “few beers” and — to guffaws of incredulity from the public gallery — absurdly explained to the commission that the “conservative” in the group’s name actually referred to their attempts to “conserve education” at UCT during the 1970s when antiapartheid activists were disrupting classes under the slogan “Liberation before Education”.
As for the attempted murder of Eglin, well, for Hack, who drove the get-away car after the shooting, this was merely “a classic example of being in the wrong place at the wrong time”.
There were other moments of pure theatre. The concerning issue of Hlophe allowing Hack to represent Gayaat-Hlophe in a domestic alimony court matter involving her previous spouse, while he was acting at the high court, was raised. The candidate said he believed Hlophe’s permission ensured there would be no issue. As he expounded on his long and close relationship with Gayaat-Hlophe, Hack, at some point recounted, with a tremulous lip, how he had held her youngest daughter when she was a mere two weeks old.
At another point in the interview, Hack was asked how his elevation to the Bench, as an old white man nearing retirement age, would help with transformation? He advanced the argument, interrupted only by dramatic pauses, that his sexuality — Hack is apparently gay — would bring diversity to the Bench and inspire others to aspire to the judiciary too. Unlike other openly gay judges like former Constitutional Court justice Edwin Cameron there was nothing on Hack’s CV to suggest LGBTQI activism before this interview.
Democratic Alliance MP Glynnis Breytenbach noted that the JSC’s role was to protect the independence, impartiality and effectiveness of the courts. She asked Hack whether a judge who was found guilty of gross misconduct, but continued to adjudicate matters, would be eroding these values?
Hack responded that he was “really not prepared to enter into that area. I do not believe it is my role to give any opinion in that regard…”
When Breytenbach said her question was philosophical and not linked to any ongoing scandals in the Western Cape, Hack responded: “With the greatest respect your question cannot but be in relation to the Western Cape situation. I mean its a very unusual situation to suggest this would happen on any kind of regular basis and I don’t think its appropriate for me to make a comment.”
To which Breytenbach retorted: “Thank you, believe it or not, you answered the question…”
Pointing out to Hack the public perception of deep divisions centred around Goliath and Hlophe at the Western Cape High Court, and that the latter had been found guilty of attempting to improperly influence two members Constitutional Court justices, Advocate Jennifer Cane SC asked Hack: “Will there not be a perception that you would not be amenable to influence by the Judge President, that you would be part of a faction of which he is a part on that Bench?
Hack said that Hlophe had never tried to influence him in any matter that he had heard during his various actings stints. He also said that he was oblivious to any factionalism at the court because he had always been treated with collegiality and courtesy by other judges, including Goliath.
“I know my name has been mentioned in [Goliath’s] compliant. I do not see myself as being in any camp. I believe that my judgements will be the basis in which the public will see my role on the bench… The proceedings against the Judge President must follow their course, there must be due process.”
Cane reiterated that the question was not about the process the JSC and Hlophe were involved in, but “really about public perception because of your “longstanding friendship” with Hlophe and his wife.
Hack responded: “Undue influence? Undue influence in respect of what? Undue influence in respect of my judgments? I do not believe that there is a such a public perception. I believe the Western Cape is a sophisticated society, like the rest of the country. It understands that individual judges must honour their oath and obligation to judge without fear and favour… I don’t agree with you that my appointment would create the wrong impression.”
Hack was not appointed.
