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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:

April 2021 Interview Synopsis

A body drawn from the legal and political elite, the Judicial Service Commission (JSC) has, for over a decade, been prone to divisions according to race or political sectarianism, rather than class, social justice or judicial philosophies.

Layer polarising, often scandal-ridden public personalities like former president Jacob Zuma or current Western Cape High Judge President John Hlophe over that foundation and any interview suggested to be a proxy battle for such interests is always set to be noisy, divisive, and with handbags at the ready.

So it turned out to be for the round of interviews to fill Western Cape High Court Bench vacancies. Especially since the JSC’s Judicial Conduct Tribunal had announced on the weekend preceding this round that it had found Hlophe guilty of gross misconduct. The finding related to a long-running matter dating back 13 years when Hlophe approached two justices of the Constitutional Court in an attempt to influence them in a matter involving Zuma.

Previously, Hlophe had avoided the JSC and sent a deputy in his stead, unless, it appeared, he had a direct interest in the appointments.

With many of the candidates in this round cited — mainly through veiled references — in Western Cape deputy Judge President Patricia Goliath’s separate, and more recent complaint against her boss, it seemed that Hlophe’s presence was required — if only for the optics and politics of the situation.

So it was that the Western Cape judge president flew up from Cape Town to sit as part of the JSC in Johannesburg. Aside from Hlophe stating at the beginning of each interview that he knew the candidate and declaring the history of that relationship, he did not participate any further in the public interviews. Which would have left taxpayers puzzled as to why he didn’t just conference call his presence like some commissioners, including the JSC chairperson, Chief Justice Mogoeng, had chosen to do during the pandemic

Hlophe’s presence did, however, appear to provide a rallying call for his supporters — and detractors — among the JSC. It soon became clear that Economic Freedom Fighters leader Julius Malema, advocate Thandazani Madonsela SC and most of the ANC legislators were keen to protect candidates considered to be close to Hlophe. This while Advocate Jennifer Cane SC and the Democratic Alliance’s Glynnis Breytenbach (a former prosecutor) sought to interrogate them by using the example of Hlophe’s much-publicised troubles as their weapon of choice.

Attorney Matthew Francis was the first of the Western Cape candidates and his interview was vital in setting the template for what Mogoeng would allow as permissible questions for the rest of the interviews.

After a few breezy opening questions by other commissioners, Cane asked Francis how he would handle the “challenges” which the division faced? These have included the sense of a divided division especially with the unprecedented move by ten sitting judges refusing to share full Bench duties with another judge linked to the various scandals surrounding Hlophe and his wife Gayaat Salie-Hlophe. Salie-Hlophe is also a judge in that division.

Francis said he had experienced no difficulty working there during two years of having acted at the high court. He said the perception that the “division is about to crumble” was nothing but “shrill hysteria” and that the courts were “running effectively.”

Cane then sought to “postulate a situation” in which Francis was about to hand down judgment in a matter but was “approached by another judge not sitting in the case” and that “judge gives you indication how that case should turn out… How would you react?”

Francis responded: “If its an obvious approach to say ‘You will determine this matter in a particular way,’ then obviously I would be offended, for one, and I would take the necessary steps to refer it to the JSC. A lot depends on context and we know context matters.”

He added that he found “no difficulty in discussing cases with judges. As an acting judge myself I have found great comfort in being able to approach fellow judges and to toss around ideas.”

When asked by Cane to confirm the dividing line between discussions and attempt to influence, Francis responded: “Any judicial officer exercising his function must do so independently and without fear and favour. That goes without saying.”

Attorney Doris Tshepe noted that Advocates for Transformation had raised, in its submissions to the JSC that Francis was a friend of Hlophe and invited him to comment

Francis recounted how Hlophe had lectured him in the late 1980s at the then University of Natal and they had intended to work together on a “redraft of Lawrence Baxter’s administrative law text book” in 1998 or so.

They had “no contact” until Francis had popped into his office twenty years later when he had a 2018 matter in the Western Cape High Court: “I went to pay my respects to him… [and] told him I intended relocating to the Western Cape and he asked me whether I would like to be considered [for an acting appointment]… I went away and that is how it started… Since being appointed he has become a friend of mine and I value that friendship. But allegations of nepotism and the like, quite frankly, its insulting,” said Francis.

“Nepotism assumes that you need a leg up, that you are appointed improperly and that you cannot do it on your own merits. With respect I would like to believe that my CV and my experience speak for themselves,” Francis continued.

Later, Breytenbach noted that judges take an oath to protect and uphold the Constitution which is paramount. Observing that Hlophe currently “operates under a serious cloud” because he had been “found guilty of gross misconduct, misconduct linked to underlying dishonesty, how in your view does this serve this injunction, and is this, in your view, desirable?

Francis began answering by saying: “I’m not sure whether it is my place to address issues which are…” when Madonsela attempted to intervene on his behalf by questioning whether this was a suitable question for the candidate.

Mogoeng said: “I think the candidate was handling it very well, Advocate Madonsela, he was in the process of answering…”

Francis then said: “I really don’t think it is my place to comment on the situation as it presently exists and I would respectfully decline to do so.

Breytenbach responded: “I’m not asking you to decide the matter, Mr Francis, I am asking you for your view… [considering your] impressive qualifications and experience in Constitutional law. Is this type of situation desirable and does it serve this injunction? It’s not a difficult question, I am not asking you to decide anything.”

To which Malema — a model of the kind of retiring subtlety that he very rarely demonstrated when questioning candidates he bore an issue with, or sought to score political points against —  interjected: “Chief Justice the candidate has declined to answer that question. He has declined!”

Mogoeng responded: “Yes honourable Malema, lets leave it to the candidate. I’m just trying to avoid a situation where colleagues will be stepping in on a point of order… I think the candidate is well able to handle the situation…”

Left to his own devices, Francis said: “I don’t think I would really want to comment on the specifics because there are bodies dealing with this matter, but if I could perhaps make a general comment? I think that every citizen, including judges, they can avail themselves of the rights in the Constitution. One of these rights is to be treated with dignity, regardless of what you might think about them,… dignity is an essential principle in our constitution and I would just hope that those principles would be observed…”

Breytenbach, ever the cross-examiner, continued: “In general does this type of situation impart dignity to other members of the Western Cape High Court?”

“What situation?” Francis retorted.

To which Breytenbach responded: “When a Judge President of a division has been found guilty by a Judicial Conduct Committee [sic] of gross misconduct — does this impart dignity, the dignity that you speak of, to the other members of this division?”

Francis said: “The fact that charges may be levelled, justly or unjustly, against a particular individual doesn’t affect any other judge. They continue to execute their task faithfully and diligently. I think they also believe in the rules of natural justice. People must be given a fair opportunity to have their say and they also believe in the principles of the Constitution which allows people to have a fair trial and everything that implies…The fact that the JP may be facing misconduct charges has absolutely no effect on me and how I perform and execute my functions.”

Francis was also asked about the perception that the judiciary has, in recent years, encroached into the ambit of other spheres of government, to which he responded that this seemed characteristic in “transitioning societies” with a numerically weak opposition, but that the judiciary had to be wary of playing the role of the opposition.

He was also asked about why he wanted to be appointed to the Western Cape Bench rather than KwaZulu-Natal where he is from and where his law firm mainly operates (he always wanted to relocate to Cape Town) and to address “mutterings” about how much his acting stint was costing tax-payers (relatively, very little, because he used his own car, lived in his own premises and was not a regular traveller to his home province).

But questions about Hlophe’s scandals would prove the litmus test for both his, and the candidates who followed. Francis was recommended for appointment by the JSC.