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07 Oct 2019 22:02
Chief Justice Mogoeng Mogoeng had to intervene during Limpopo high court judge Legodi Phatudi's interview when it became heated. (David Harrison/M&G)
After an afternoon of Judicial Service Commission (JSC) interviews, no one was recommended for appointment as deputy judge president of the Limpopo high court, with all the candidates apparently failing to impress.
The JSC interviewed three judges — Gauteng high court judge Thifhelimbilu Mudau and Limpopo high court judges Gerrit Muller and Legodi Phatudi — for the post of deputy judge president of the Limpopo division of the high court.
But the interviews went from bad to worse as it emerged that the Thohoyandou local division was beset with “challenges”, yet its judges were — it was claimed by Judge President Ephraim Makgoba — arriving at work after 11am and leaving at 3pm.
Phatudi — the second most senior judge at the Thohoyandou court — had the most difficult interview, with his judge president grilling him to such a point that Chief Justice Mogoeng Mogoeng intervened, asking if there was some personal animosity between the two.
“Do you two have personal differences or is it a genuine misunderstanding? ….
Phatudi responded that he had “no clue” what was going on.
The judge president took out a spreadsheet prepared by the National Prosecuting Authority in the province showing that in one period, Phatudi had 20 criminal cases on his roll, yet had only finalised three. The next time he was given the criminal trial roll, he had 22 criminal cases and only one was finalised, Makgoba said. Phatudi said he had given a report to the JP on why this happened and what accounted for the postponements in “each and every” case.
However, commissioners kept returning to the allegation that the Thohoyandou judges were arriving at court so late. Phatudi said that he never had come to work late, except for one instance when he had car problems and arrived ten minutes late.
But what about the others, commissioners asked. Commissioners questioned Phatudi further asking whether he could confirm the allegations and how he could not know where his colleagues were. Phatudi was also asked why had he not reported them to the judge president. The questions kept coming with commissioners seemingly unimpressed by his answer that he was in court himself so could not see who arrived when.
Muller also had a tough time. He is most famous as the trial judge in the damages claim brought by the family of Michael Komape, a five-year-old school child who drowned in faeces after falling in a pit latrine at school. Muller’s judgment in the case — in particular his refusal to award damages for emotional shock despite a concession by the state — has been widely criticised.
But he was let off the hook on answering questions on the Komape judgment as an appeal is still pending before the Supreme Court of Appeal. He also did not get grilled on the Thohoyandou court in the same way as Phatudi, since he was ordinarily based at the Polokwane court.
He had his own hurdles, however, with some commissioners apparently taking a dim view of his statement that he had not really considered transformation when he applied to be deputy judge president and that he was there “for himself”. Commissioner Thabani Masuku SC even said, after initially putting up his hand to ask a question but then changing his mind, that he was “disappointed” with Muller’s answers on transformation.
In a division where there is only one female judge, candidates should have been expecting to answer questions on what they, as aspiring leaders of the judiciary, would do to bring their division in line with the constitutional injunction that the judiciary broadly reflect South Africa’s population in terms of race and gender.
Yet in an answer that sounded like it had been dusted off from JSC interviews of the mid 2000s, Muller said he supported transformation but that, as a sitting judge, “colour doesn’t matter at all” as what one had to do was “apply the law”. It did not help that in answering another question, he differentiated between “white farmers” and “the local people”.
Mudau had a better time of it although he was also put through his paces, especially because he is not a judge of the court for which he wants to be a leader. When he was pressed by the chief justice for specifics on what the challenges were in the Limpopo courts and how he planned to address them, he struggled to move beyond generalities. The chief justice said the questions were not meant as “an attack” but candidates knew that when they came for JSC interviews they would face tough questions.
On Tuesday, the JSC will be looking to appoint a deputy judge president to the North West high court, a judge to the Free State high court and two judges to the Western Cape high court.
Read more from Franny Rabkin
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