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Mr Selwyn Hockey

Capacity: Attorney
First admitted as advocate: 1991
Gender: Male
Ethnicity: Coloured
Date of Birth: 30 September 1962

Key judgments:

Candidate bio:

As an attorney at Weber Wentzel, Selwyn Hockey has been, ahem, hocking his legal services — and perhaps a rational sense of perspective too? — in defence of Independent Newspapers and its seemingly inexorable journalistic decline under the ownership of the self-aggrandising Iqbal Survé.

This has included writing defences of the increasingly shoddy reporting in Survé’s newspapers and making demands that other media houses retract and apologise for pointing out the inaccuracies and alleged “fake news” that now characterise the Independent stable’s output.

He penned one such letter to BizNews in 2017.

Such myopia would certainly be a cause for grave concern on the Bench. After acting during the second term of 2004 at the Western Cape High Court, he returned to that Bench for three terms in 2020.

During the first stint he dealt with the matter of S v Volkman where a murder accused indicated he would raise a defence of non-pathological incapacity.

The state then applied for the accused to be referred for observation at Valkenberg Hospital in terms of section 78(2) of the Criminal Procedure Act which allows for an enquiry into the mental state of the accused.

Hockey considered the provisions of section 78(2), and held:

“Clearly, the Legislature made a distinction between allegations of criminal incapacity based on mental illness or mental defect, on the one hand, and such incapacity based on ‘any other reason’ on the other. Where there is an allegation or appearance of mental illness or mental defect, the court is obliged (‘the court shall’) to direct that the accused be referred for observation in terms of s 79 of the Act. If, however, there is an allegation of lack of criminal responsibility for any reason other than mental illness or mental defect, the court has a discretion whether to refer the accused for observation or not. Non-pathological incapacity falls within the latter category. Entrusting the court with discretion in cases of non- pathological incapacity is not surprising.”

Hockey found that in exercising his discretion as to whether to refer the accused for observation or not, he was required to take into account that while psychiatric evidence was “not indispensable”, “the Court must remain mindful of the helpful role that such evidence plays in these matters.”

Hockey held further that it was necessary to take into account the conditions at the Valkenberg Psychiatric Hospital, where one state witness “acknowledged that the conditions in the ward (where the observations take place) are ‘appalling and abject’.” The conditions the patients were subjected to at night were described as “inhumane.”

Hockey held: “The main consideration … is whether it would be in the interests of justice to order that the accused be referred for observation … for 30 days (including nights) as requested by the State. Interposed with this consideration is the question whether granting an order as requested by the State would be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom (see s 36(1) of the Constitution). These issues should be decided in the light of the appalling and inhumane conditions at Valkenberg.”

Hockey found that granting the order would “no doubt” infringe the accused’s rights to dignity and freedom, and particularly his rights “to be detained under conditions that are consistent with human dignity, including adequate accommodation as afforded by s 35(2)(e) of the Constitution.”

He concluded that since psychiatric evidence to counter the accused’s prospective defence was not indispensable, and that “the extremely unpleasant and degrading conditions” to which the accused would be subjected if the order was made, it would not be appropriate to exercise the court’s discretion in the State’s favour. The application was dismissed.

During his most recent stints in the Western Cape High Court, he heard the matter of Plasslike Besorgde Inwoners & Others v George Munisipality & Others, which was an application to set aside the mayoral elections in George.

At issue was whether the speaker who, together with the elected mayor, was a member of the Democratic Alliance, had deliberately manipulated the timing of scheduled council meetings by cancelling or postponing them until he was sure of the successful election. Likewise, whether the meeting and election process was irregular.

Hockey considered the applicable legislative framework and noted that the events in questions had taken place during the COVID – 19 pandemic when the country was at Alert Level 4 of the national lockdown.

At that Level, meetings of councils had to be convened “using media platforms such as teleconferencing and videoconferencing”.

Hockey noted that two council meetings were cancelled in March because of regulations and another two in May because of employee infection and the need for the venues to be deep cleaned.

Hockey found that while the applicants alleged that “the cancellation of these meetings were sinister in order to afford the DA an unfair advantage during motions and mayoral elections”, they had cited “no objective facts” from which the court could conclude that the inference was reasonable.

Rather, good reasons existed for the postponement or cancellation of the meetings in question.

Hockey then considered a potential irregularity where a councillor was allowed to vote in possible violation of Rule 15.2, which forbade any councillor from leaving or entering the council chamber while voting was in progress.

He held: “Enfranchisement is an important foundation on which our democracy is built. This entails the right of not only the electorate to cast their votes, but also those who has been democratically elected by the electorate to represent them.”

Hockey noted that numerous cases had found that “non-compliance with statutory or other legislative provisions is not always fatal” and that the Rule was “more tailored where voting happens in chambers by the show of hands.”

There was “no logical purpose for strict compliance … where voting takes place by secret ballot.” He therefore held that even if there had not been strict compliance with Rule 15.2, this did not render the whole voting process invalid: “In any event, we must be mindful of the circumstances under which the impugned meeting and voting took place, relating to the state of disaster and the resultant lockdown regulations and directives applicable. Allowing Kritzinger to vote after others had casted there votes was a rational measure put in place by the speaker to avoid possible contamination.”

The application was dismissed with costs.

Hockey has previously demonstrated a history of activism with the United Democratic Front, the National Association of Democratic Lawyers (Nadel) and the Athlone Action Committee.

Hockey holds a BA (Soc Sci) from the University of Cape Town, a BA (Law) from the University of the Western Cape and an LLB from that institution too. In 1991 he served his articles at Moosa and Associates and left the firm (which had become Moosa, Wagley and Associates) in 2007 to join Webber Wentzel, where he remains a partner until the present.

April 2021 Interview: