Capacity: Judge
First appointed as a judge: 2013 (Gauteng, Pretoria)
Gender: Female
Ethnicity: Coloured
Date of Birth: 28 February 1968
Key judgments:
- Big Five Duty Free (Pty) Limited v Airports Company South Africa Limited and Others (16829/15) [2016] ZAGPPHC 688 (5 August 2016)
- Centre for Child Law v Media 24 Limited 2017 (2) SACR 416 (GP)
- President of the Republic of South Africa v Office of the Public Protector 2018 (2) SA 100 (GP)
- FourieFismer Inc and Others v Road Accident Fund 2020 (5) SA 465 (GP)
Candidate Bio:
A judge of the Gauteng High Court since 2013, Wendy Hughes has also acted at the Lesotho High Court in 2015 and at the Supreme Court of Appeal (SCA) from December 2017-May 2018, and June-November 2019.
In February 2018, the SCA heard the matter of Director of Public Prosecutions, Grahamstown v Peli, which was an appeal against sentencing of the respondent who had pleaded guilty to raping a six-year-old boy. The high court imposed a ten-year sentence with four years suspended provided he seas not found guilty of a similar act during the period of suspension (rather than the prescribed minimum sentence of life imprisonment).
Hughes held that “[t]he fact that the respondent was a first offender and had consumed alcohol before committing the offence, which, however, did not affect his appreciation of the wrongfulness of his conduct at the time he committed the offence, pales into insignificance when the gravity of the offence, being the rape of a 6-year-old child, is considered.”
She also found that, for intoxication to constitute a substantial and compelling circumstance, it had to be shown that the consumption of alcohol “had impaired or affected the respondent’s mental faculties or judgment and thereby diminished the respondent’s moral blameworthiness”, and so the fact that the respondent had appreciated the wrongfulness of his conduct and was able to distinguish right from wrong, but nevertheless proceeded to commit the rape, meant that intoxication could not be regarded as a substantial and compelling circumstance to depart from the minimum sentence.
She also held that the respondent was not truly remorseful, as he had only confessed once he was arrested, four years after the offence had taken place. Hughes also found that the plea had not arisen out of remorse “but rather because there was overwhelming evidence against him in the form of DNA evidence”.
This was “a case of regret instead of remorse,” Hughes observed, further finding that “the High Court’s characterisation of the rape of a 6-year-old child as not being severe so as to induce a sense of shock” could not be sustained. The appeal was upheld, and the sentence was set aside and substituted with life imprisonment.
In the high court matter of Centre for Child Law & Others v Media 24 Ltd & Others the applicants sought an order declaring the protections contained in section 154(3) of the Criminal Procedure Act (CPA) were applicable to victims of crime under the age of 18, and that child victims, witnesses, accused and offenders did not forfeit those protections when they turned 18 years old. Alternatively, applicants sought an order that the subsection was unconstitutional.
Section 154(3) prohibited the publication of any information which revealed or may reveal the identity of an accused or a witness under the age of eighteen years.
Hughes noted the applicant’s two concerns regarding the section: that it did not afford a child victim involved in criminal proceedings the same anonymity as a child accused or witness, and that the anonymity fell away when the child accused or witness turned 18.
Hughes found it was “common cause that a number of constitutional rights are at play against each other” in the matter. These included, on one hand, that the child’s best interests being paramount and that their rights included that of dignity, equality, privacy and a fair trial. On the other hand was the public and media’s rights to freedom of expression, and open justice.
Hughes J held that Section 154 of the CPA must be read with section 153(1) of that Act and Section 63(5) of the Child Justice Act which provided that no person could be present at the sitting of a child justice court, unless necessary for the proceedings. She also found that section 153(1) of the CPA provided for proceedings involving a child in a criminal court to be closed to the public, subject to permission from the presiding officer to hold proceedings in open court. Read together, Hughes found, these sections did not differentiate between whether the child was an accused, a witness, a complainant or a victim.
“Critically, though, I find that the restriction to be found in Section 154(3) in fact relates to criminal court proceedings. In my view this restriction cannot be used as a blanket clause in other legal instances, but for criminal proceedings,” she found, concluding that the section was not unconstitutional.
On the issue of anonymity lapsing at the age of 18, Hughes held “there cannot be open-ended protection in favour of children, even into their adulthood”, since this would “violate the rights of other parties and the other rights of the children themselves when they are adults.”
“For example, as a child, having been involved in a crime, either as an accused, victim, complainant or witness, as an adult that child might seek to highlight awareness of their experience with others. This would not be possible, whether it was to bring awareness to others or purely to highlight the plight of such experience, as there would be a gag on such publication, if the protection is open-ended even into adulthood. This would simply amount to stifling the adult’s right of freedom of expression. This in my mind takes away an individual’s right as an adult. This situation results in one right, now, thumping [sic] another.”
She also declared that the protections of section 154(3) of the CPA applied to victims of crime under the age of 18 years. The “adult extension” claim was dismissed, “for it is neither permissible nor required by the Constitution.”
On appeal, a majority of the SCA held that section 154(3) was constitutionally invalid to the extent that it did not protect the anonymity of child victims, but dismissed the appeal regarding ongoing protection in Centre for Child Law & Others v Media 24 Ltd & Others in 2018.
On a further appeal to the Constitutional Court in 2020, the majority judgment confirmed the declaration of invalidity in respect of section 154(3), and further upheld the appeal regarding ongoing protection, holding that this would not present a “severe incursion” into media freedom.
Prior to her permanent appointment to the Bench, Hughes worked as an attorney from 1996 onwards. She holds a B.Proc (1992) and LLB (1995) from the then University of Durban-Westville and an Advanced Diploma in Labour Law (1998) from the then-Rand Afrikaans University.
keep open space
April 2021 Interview
April 2021 Interview Synopsis:
Described as “hardworking” by Supreme Court of Appeal (SCA) president Mandisa Maya, Gauteng High Court judge, Wendy Hughes came across as determined and resolute during her successful interview for a position at the appellate court.
Maya had commented on the fact that while Hughes had lost both her parents within weeks of each other during her first acting stint at the SCA, she had never “asked for any special privileges”.
Hughes conceded that while it was “not an easy transition” to the appellate division where “some colleagues were not as helpful as others”. She had stood up for herself during an “unpleasant experience” with a senior judge regarding concerns he had raised about a draft judgment she was writing.
Hughes said she had reported the incident to Maya but also “stood my ground” because “you cannot disrespect someone else” in a manner that lacks collegiality.
She said the combined experience of the interaction with the now retired senior judge and losing her parents reinforced her determination to excel during her second acting stint at the SCA: “I wanted to show them the person that I am,” Hughes told the commission.
Responding to comments from the General Council of the Bar criticising the quality of her judgment writing, her understating of basic civil procedure, and a stinging comment about her grasp of the English language. Hughes said the organisation appeared to be “picking and choosing” her judgments to criticise but that she was “humbled that they even took the time out to make the comment”.
Hughes was also asked about her briefing patterns and areas of work while an attorney and her “perceived reluctance” to handle matters related to rape and gender-based violence. To the latter, she responded that she was assured by Judge President Mlambo of the Gauteng High Court that all judges in the division were exposed to the full “spectrum” of legal areas in the allocation of matters.
