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Judge Violet Phatshoane

Profile:

Current Position: Judge at the Northern Cape Division of the High Court

Appointed: 2011

Candidate Bio:

In 2017 Judge Violet Phatshoane twice interviewed unsuccessfully to be deputy head of the Northern Cape High Court division, where she has served since 2011.

She came up short on both occasions, however, as during the October round of interviews it emerged that she has been the preferred candidate of former judge president, and commissioner, Frans Kgomo — which caused the Judicial Service Commission (JSC) discomfort and displeasure.

Phatshoane’s rival for the deputy judge president position, Bulelwa Pakati, alleged rancorous divisions and nepotism at the court during Kgomo’s tenure.

As a high court judge, Phatsoane has dealt with cases involving the messy confluence of politics and business interests in the Northern Cape.

A few years ago, she sentenced former Northern Cape ANC provincial chairperson, and pro-Jacob Zuma strongman, John Block, to an effective 15 years imprisonment after finding him guilty of corruption and money-laundering following an arduous four-year trial.

In a 2015 judgment Phatsoane found that Block and Christo Scholtz, CEO of the Trifecta group of companies, had facilitated government leases exceeding R100-million all across the province in exchange for kickbacks. Scholtz had R60-million worth of assets confiscated.

Sentencing was delayed after Block’s lawyers lodged a complaint with the Judicial Service Commission (JSC) alleging that Phatsoane had been influenced by Judge President Frans Kgomo. They alleged that a judge known to them had overheard a telephonic conversation between Phatsoane and Kgomo during which the latter had urged her to “convict the bastards”. Phatsoane had dismissed the bid for her recusal.

Over the past three years, Phatshoane has acted at the Labour Court, the Labour Appeal Court and as deputy judge president of both the Northern Cape High Court and the Labour Court.

While at the Labour Court, she was criticised for her ruling in MBS Transport CC v Commission for Conciliation, Mediation & Arbitration (CCMA) and Others and Bheka Management services (Pty) Ltd v Kekana & Others.

At issue was whether the Labour Court had the jurisdiction to stay writs of execution of arbitration awards made by the CCMA, pending review and if not, what parties could do to vindicate their rights pending review.

Phatshoane held that, in general, the court had a wide discretion to stay the writs of execution of its own orders but that as the CCMA had lacked jurisdiction to issue the writs, the writs could be set aside as a nullity.

The judgment has been criticised by Suemeya Hanif in the article, Fishing without a hook, published in ENSAfrica in 2016. Hanif argued that the court’s finding that the CCMA did not have statutory authority to issue writs was incorrect and the Labour Relations Act’s clear language “indicates an intention to create a statutorily created mechanism, not for orders of the CCMA to become orders of the Labour Court in respect of which a writ has been issued, but for orders of the CCMA to be enforced as if they are orders of the Labour Court in respect of which a writ has been issued.”

It is also argued that if the court’s conclusion is accepted that the proper course to follow is for litigants to approach the Labour Court to issue writs of execution in satisfaction of the arbitration awards, then the words “in respect of which a writ has been issued” in section 143(1) becomes superfluous. It further argued that the court’s findings were contrary to intentions of the 2012 Labour Relations Amendment Bill “to streamline the mechanism for enforcing arbitration awards of the commission and to make these more effective and accessible [by removing] the need for the current practice in terms of which parties have a writ issued by the Labour Court”.

Phatshoane holds a BProc from the University of the North and LLB and LLM degrees from the University of the Free State. She was admitted as an attorney in 1999 and set up her own practise, Phatshoane Honey Inc Attorneys in 2002. She also served part-time at the Centre for Conciliation Mediation and Arbitration (199-2004) and a lecturer at the University of the Free State (2006-2009). She acted at the Northern Cape High Court in 2010 and 2011 before her permanent appointment that year.

April 2019 Interview:

April 2019 Interview Synopsis:

The stink of former Northern Cape High Court Judge President Frans Kgomo’s alleged attempts to ordain Violet Phatshoane as his successor following his 2017 retirement (see profile) still linger with the Judicial Service Commission (JSC) like an ill-conceived flatus in an elevator.

It ensured that the position of deputy judge president of the division remained unfilled after the April sitting of the commission.

This was despite Phatshoane’s denial that she had been “head-hunted” by Kgomo to succeed him — an allegation made by her competition for the position of judge president in 2017, Judge Bulelwa Pakati, who said Kgomo had told her this in an attempt to dissuade her from availing herself for the job.

Phatshoane said she was “shocked and very hurt” by the allegations because “I thought we were friends, but I’ve got broad shoulders”. She said, “no issues had been put on the table” about the matter, but that she and Pakati continued to have “a cordial relationship” and that they “exchange pleasantries”.

Asked by Chief Justice Mogoeng Mogoeng “what has changed” in her judicial experience since that 2017 interview, Phatshoane said she had headed the division in an acting capacity for one month and had spent five months acting as the court’s deputy judge president, also. Phatshoane had also spent six months last year acting at the Labour Appeal Court and another six months acting as the deputy judge president of the Labour Court. This, she felt, stood her in good stead to assume the position she was interviewing for.

Asked if there were collegiality issues still lingering at in the Northern Cape, Phatshoane said there were “no problems” and that all the judges enjoyed a meal together on one of their birthdays or got a cake in, et cetera.

The allusion to happy families didn’t convince the JSC.

October 2017 Interview:

October 2017 Interview Synopsis: 

The Judicial Service Commission can sometimes be harder to read than a garbled ANC Youth League press release.

Sometimes innocuous seeming interviews degenerate into excruciating bloodbaths with interviewees being flayed to within an inch of their lives for some trespass — perceived or real. At others, just when you expect the commission to bare its teeth and rip a chunk out of a candidate, it declines the offer and chooses a smoothie instead.

The latter was the plat du jour during Judge Violet Phatshoane’s interview on Monday. After the allegations of divisions, factionalism and extra-procedural manoeuvring in the Northern Cape High Court favouring Phatshoane emerged during Judge Bulelwa Pakati’s interview, the gathered JSC-watchers (all four of us) were anticipating a spectacle befitting the Circus Maximus.

We got a smooth-jazz concert in the park. The probing about this apparent nepotism was subtle. Commissioners asked Phatshoane about any “challenges” in the division which she may want to address if she were appointed. She didn’t see any. Slightly changing tack, they enquired again. Phatshoane rambled on about problems in the magistracy and prosecuting authority caused by the freezing of appointments and about having called the Legal Aid Board, Bar and Side-bar for meeting when she was acting judge president so as to get a handle on the province.

Finally, Justice Minister Michael Masuthu proved the bluntest of the set of butter knives, noting that Phatshoane may not “have been frank and candid with us regarding relationships in that division” asked whether she wanted to “make some adjustments to the version you have given us”?

Phatshoane stuck to her story, saying there were no problems in the division and that she “related very well” with Pakati.

For the rest of the interview, Phatshoane appeared ill-prepared at times: she was still unable to give an authoritative analysis of the state of the Northern Cape magistracy despite being asked a similar question during her April interview when she admitted not having given that much thought. She also answered in broad brushstrokes questions relating to case-flow management and efficient hearing and delivery of judgements in that division despite being tasked with handling those areas.

At other times Phatshoane waffled on about her past achievements as a lawyer to the point when, asking the JSC whether she should carry on her self-affirmation trip, Chief Justice Mogoeng Mogoeng politely declined another “mouthful”.

Needless to say, she didn’t get the job.

April 2017 Interview:

April 2017 Interview Synopsis:

Chief Justice Mogoeng Mogoeng can become quite animated while chairing the Judicial Service Commission (JSC), but he rarely sighs at such audible length that one is fearful he may be left winded.

He did so after a ramble of a preamble to some odd questions by Public Service and Administration Minister Faith Muthambi, who is the justice minister’s substitute at the JSC during this sitting.

Muthambi interrogated Judge Violet Phatshoane on a complaint lodged against her concerning a case she was adjudicating which involved former ANC Northern Cape ANC chairperson, John Block (see Phatshoane profile).

The minister first asked if the order (handed down by Phatshoane) dismissing a request by Block that she recuse herself from his corruption and money-laundering trail was “complied with?” Phatshoane nervously responded that she had handed down the order and that she had been advised by the JSC that the complaint had been “dealt with… and dismissed.”

Muthambi followed up: “Aren’t you concerned that it was dismissed as an implicated party?” Phasthoane, looking puzzled, said that “on the contrary… I was happy to receive the letter from the JSC…[and] that the JSC saw these allegations were not compliant with the act and dismissed the allegation.”

Muthambi ended her questioning. The Chief Justice exhaled. The gallery chortled.

The politicians on the commission bared their partisan teeth: Commissioner Hendrick Schmidt, of the Democratic Alliance, later pointed to the vague detail in the allegations and commented that it was based on hearsay.

Then ANC member of the National Council of Provinces, Dikgang Stock, started pushing the interviewee on her decision to dismiss the application for recusal in the Block matter.

Economic Freedom Fighters Julius Malema called a point of order stating that he was “worried” that the questioning was going into “dangerous territory” as the matter may be appealed.

Stock persisted. Malema raised another point of order. Mogoeng ruled to end the line of questioning.

When later asked to point out any judgments that contributed to the development of the country’s jurisprudence, Phatshoane cited the judgment in the Block matter which allowed her to address a “lacuna” in the Corruption Act.

The interview later shifted from mainstream politics to the politics within the Northern Cape when Mogoeng revealed that Judge Cecile Williams, who had initially availed herself to be interviewed for both the Judge President and Deputy-Judge President positions, had withdrawn her candidacy.

Mogoeng said Williams had written to the JSC alleging that outgoing Judge President Frans Kgomo “had been grooming [Phatshoane] over the years” to eventually lead the division. The chief justice asked Phatshoane whether this could potentially “spoil” their relationship and how what measures the interviewee would take to ensure this didn’t happen.

Phatshoane conceded “there may be a problem that may arise” and that this may be resolved at a “diversity workshop” to be held soon.

Commenting on the rate of gender and race transformation, Phatsoane said that the judiciary was “making some strides, slowly but surely we are getting there” with the number of female judges having risen from 0.7% in 1994 to around 30% in 2017.

She also cited the prospective confirmation of acting Supreme Court of Appeal president Mandisa Maya as the first female head of that court as progress. Phatshoane also stated that transformation was not not just about numbers, but also improving the capacity of judges.