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Mr Matthew Francis

Capacity: Attorney
First admitted as attorney: 1993
Gender: Male
Ethnicity: Coloured
Date of Birth: 20 November 1962
Key judgments:

Candidate bio:

Pietermaritzburg-based attorney Matthew Francis has acted uninterrupted at the Western Cape High Court in 2019 and 2020 — which may explain why an exclusive address on Cape Town’s Waterfront makes such sense.

Francis is referred to — but unnamed — by the Western Cape High Court Deputy-Judge President Patricia Goliath in the complaint against the division’s Judge President, John Hlophe, as being part of a coterie of acting judges who her boss — or his wife, Judge Gayaat Salie-Hlophe — appears to favour.

Goliath alleged in her complaint to the Judicial Service Commission (JSC) that Francis was tapped on the shoulder to act “for no apparent reason and at great expense to the state”. In his responding papers Hlophe named Francis and said his “impressive record as a legal practitioner” had motivated his acting appointment. He added that allegations of high accommodation costs were “simply not true.” A letter from the court manager confirming that the High Court had not incurred any accommodation costs during Francis’ acting stints was attached to Hlophe’s responses.

But Francis appears to like luxury travel: his three flights to Durban for approved visits had cost a total of R21 666-00, according to media reports. Small change perhaps for an attorney who, according to lawyers in his home province, gets a substantial amount of work from state-owned enterprises and local municipalities.

He is certainly a high-flyer when it comes to court cases, having adjudicated at least three which deal with cannabis.

The matter of S v Matross was a special review where the accused was convicted following the payment of an admission of guilt fine for the unlawful possession of dagga.

Francis (with Judge Robert Henney concurring) held that the relevant section of the Criminal Procedure Act required a written notice to be given to the accused after the peace officer had explained the meaning and consequences of that notice on their criminal record.

According to Francis this required “that the peace officer must explain the implied meaning and the importance or significance of the written notice to the accused. This must of necessity include the consequences of the notice in the event that the accused chooses not to appear at court, but instead to pay an admission-of-guilt, fine in lieu of having to go to trial.”

He further held: “The consequences of a previous conviction can be devastating to an accused who is in fact not guilty, but is under the mistaken apprehension that the payment of the fine will get rid of a ‘nuisance’ and will not result in a previous conviction. If a police officer tells an accused person that the payment of an admission-of-guilt fine will result in a criminal record, it is highly unlikely that an accused would pay such a fine if he or she genuinely believes that he or she has a defence. Quite simply … the plain wording of s 56(1)(d) of the CPA imposes a duty on the police officer to disclose to an accused the serious consequences of paying an admission-of- guilt fine. Accordingly, I respectfully disagree with the judgment of the court in S v Rademeyer … where the court expressed a contrary view and held that there was no duty on a police officer to warn the accused of the full consequences of paying an admission-of-guilt fine.”

An explanation of the full consequences of an admission-of-guilt fine was “part of a fair procedure which the courts, especially after the advent of the Constitution, have insisted be followed where an accused is invited to consider paying an admission-of-guilt fine,” Francis found.

In this case, the true import of the written notice had not been explained to the accused so the admission of guilt was set aside, and the entry in the criminal record book expunged.

In the matter of Smit v Minister of Justice and Others, Jason Smit, a South African citizen, was arrested and accused of various cannabis-related offences in the United Kingdom.

Out on bail, Smit skipped back to South Africa after which an extradition request was made by the British government. The justice minister issued a notice in terms of the Extradition Act, requesting the issuing of a warrant of arrest before an extradition inquiry was conducted.

Following his arrest Smit challenged the process on several grounds, arguing that the schedule to the Drugs and Drug Trafficking Act was unconstitutional since the minister had exercised a power that the Drugs Act had conferred to the legislature. This, he argued, breached the doctrine of separation of powers.

Smit, therefore, argued that while the possession of cannabis may be prohibited in the United Kingdom, it was not so in South Africa, and the double criminality rule was therefore not satisfied. Smit further challenged section 5(1)(a) of the Extradition Act, in terms of which the warrant of arrest was issued, arguing that the magistrate who did so was “merely directed to do so by the Minister.”

Francis first considered a challenge to the applicant’s standing to challenge the constitutionality of the Drugs Act and held that as the applicant did not only challenge the cannabis prohibition, but also the statute and the schedules on the basis of the rule of law and the principle of legality, he had standing “in respect of those objective criteria alone.”

Smit’s challenge was not limited to cannabis but related to the alleged violation of the separation of powers and Francis found that the applicant had sufficient interest in the subject- matter of the dispute to have standing.

The acting judge then considered the challenge to Section 63 of the Act and the schedules published in terms thereof. He held that the section clearly contemplated “the Minister exercising a plenary legislative power”, such that the legislature had “delegated its plenary lawmaking power to the executive.”

Considering the doctrine of separation of powers, Francis found that: “Section 63 of the Drugs Act constitutes an impermissible delegation of plenary legislative power to a member of the executive, the Minister… When the Minister takes a decision to include or delete a substance in the schedule to the Drugs Act, he is in fact amending plenary legislation. This amendment takes place unilaterally [with the legislature having a secondary role] and certainly does not follow the manner-and-form provisions relating to the enactment of legislation. The decision of the Minister is not exercised with the oversight of Parliament and there do not appear to be any statutory limits on how the Minister ought to exercise his discretion. Instead of public participation, one Minister in consultation with another is entitled to determine which substances are proscribed. … [T]his offends the manner and form in which legislation is enacted in South Africa’s deliberative constitutional democracy.”

He further held that the section was also impugned for failing to impose limits on the minister’s discretion when determining which substances where included, removed, or retained on the schedule. The amendments to the schedule made by the Minister were also invalid.

However, “[s]ince cannabis was not inserted into the schedule to the Drugs Act under s 63, the initial schedule prescribing cannabis cannot be impugned.” Constitutional invalidity only applied to amendments to the schedules.

Francis rejected the challenge to Section 5(1)(a) of the Extradition Act, finding that a warrant under the section was issued “on the basis of a notification received from the Minister acting in fulfillment of the country’s international obligations”, and that there were sufficient safeguards in the extradition inquiry to ensure a procedurally fair enquiry for those against whom an extradition order was sought.

Section 63 and various amendments to the schedules made under it were declared to be unconstitutional. The remainder of the application was dismissed. The matter has been argued in the Constitutional Court where judgment has been reserved.

A director of Matthew Francis Inc from 2011 until the present, Francis was also a director at Venn, Nemeth & Hart and a senior lecturer at the University of Natal Pietermaritzburg which is where he knows Hlophe from.

An ANC member since 1992, Francis holds a BA (1984) and BA Hons (cum laude, 1985) from the University of the Western Cape and an MA (1988), LLB (cum laude, 1990) from the University of KwaZulu-Natal.

April 2021 Interview: