Judge Hendricks in the hot seat
[UPDATE: The content of this article was updated on 2 October 2019]
Will it be third time lucky for Judge Hendricks, from the North West High Court?
Judge Hendricks returns for the third time to interview for the deputy judge president vacancy in the North West. The Judge has run into serious opposition in previous interviews on a number of different fronts, on three different issues.
In October 2017, an objection to Hendricks’s candidacy was raised by a member of the public in a letter to the Judicial Service Commission in which accusations of corruption within the division were made. Hendricks denied these allegations.
In April 2017, Commissioner Malema asked him about his relationship with junior staff at the court in the North West division. He said that he had got a complaint from the staff members, who said he had no regard for them. Malema said, “You look down on them, you bully them; you speak to them with disrespect.” Judge Hendricks denied that this was the case.
In another question, Commissioner Singh asked the Judge about assertions that the North-West High Court was thwarting the repeated attempts of community leaders to try and preserve their mineral assets and land. Kgosi Nyalala Pilane had successfully obtained several court interdicts to stop community members from being allowed to meet, including six interdicts against meetings of the ‘royal family’, arguing that only the royal family could call meetings, not the community.
The effect of Hendricks’ decision to uphold Pilane’s application to interdict the meeting was that only the most senior traditional leader can call a meeting of the community, even when it is a meeting to hold that very leader to account. Judge Hendricks was taken on appeal to the Constitutional Court, where his decision was overturned. The Court held that the interdicts infringed basic rights to freedom of expression, assembly and association, as well as the constitutional principle of accountability.
Hendricks had previously acquitted Pilane of fraud and corruption charges linked to the administering of millions of Rands that the Bakgatla community derive from platinum mining activity on their land. Kgosi Nyalala Pilane is the officially appointed chief of the Bakgatla ba Kgafela ‘tribe’ in South Africa. An internal audit report of the community’s affairs detailed unauthorised, reckless and extravagant spending under Pilane’s watch.
The misspent millions were investigated by the so called Maluleke Commission.
The Maluleke Commission
The lack of financial accountability that was condoned and unleashed by these judgments in favour of Pilane has seen billions disappear from the coffers of the Bakgatla ba Kgafela.
Judge Maluleke died in August 2017 before the commission could complete its work. Advocate Sesi Baloyi took over as chairperson. In August of 2019 the report of the Commission was released, and the effect of the findings is that there was non-compliance with the North West Traditional Leadership and Governance Act of 2005.
The recommendations of the Commission include the appointment a forensic investigation of the financial affairs of the Bakgatla Ba Kgafela Traditional Council and its companies.
The interpretation of customary law
The North West High Court is described by Aninka Claassens and Boitumelo Matlala in a publication as “thwarting the repeated and desperate attempts of community leaders to try to preserve their mineral assets and land base, and to hold traditional leaders and government to account”. One of the judges, who has been in the thick of these cases, is Ronald Hendricks.
In this case, as mentioned above, the community placed a newspaper advertisement calling on members of the Bakgatla – Ba – Kgafela Royal Family to attend an urgent meeting. Kgosi Nyalala Pilane sought to interdict the meeting.
The community then brought a counter-application to compel the applicants to submit financial documents, and to refer the matter to the Premier to appoint a commission of inquiry into allegations of financial maladministration by the Kgosi. The effect of Hendricks’ decision to uphold Pilane’s application to interdict the meeting was that only the most senior traditional leader can call a meeting of the community, even when it is a meeting to hold that very leader to account.
Claassens and Matlala observe that;
“Judge Hendricks found that Nyalala Pilane, being ‘the nominated representative of the kgosikgolo in South Africa, has the necessary standing and clear right as a member of the royal family, as defined in terms of Bakgatla custom and law, to bring this application.’ This is a disconcerting and novel interpretation of customary law – that membership of a royal family, and chiefly status depends on the discretion of a ‘paramount’ based in another country. … Judge Hendricks’s interpretation has far-reaching consequences for the concept and exercise of chiefly accountability.”
Quote taken from; Platinum, poverty and princes in post-apartheid South Africa: new laws, old repertoires, New South African Review 4 (2014), 117