Western Cape High Court Judge Owen Rogers appears as adept with the violin and piano as he is with the law, according to his supporters. Previously unsuccessful when interviewed for judicial appointment, which drew condemnation from the sections of the legal fraternity which considered him one of the country’s top senior counsels, he was eventually recommended by the Judicial Service Commission in 2012, leading to his subsequent appointment by President Jacob Zuma.
Rogers is considered a front-runner for the vacancy given his experience in competition law when practising as an advocate and his having acted at the Competition Appeal Court more recently.
One case at the court involved a bid by construction company Group Five, to have complete access to the Competition Tribunal’s investigation record into their alleged collusion with other companies before preparing its answering papers.
Rogers, with two other judges concurring, founds that disputes relating to “legally privileged” or “confidential” documents would have to be resolved by a process separate from Group Five’s obligations to file its papers. Stating that both parties had misunderstood their obligations, he ordered them to pay their own costs.
In a 2013 High Court ruling which declared the Department of Home Affair’s closure of the Cape Town Refugee Reception Office unlawful, Rogers was mindful of the administrative effects it would have on asylum-seekers attempting to apply for, or renew, their permits.
He also went further, noting that the office’s closure would affect their job security, family life and open them up to further persecution by the state security apparatus.
In Gaertner and Others v Minister of Finance and Others, he declared the sections of the Customs and Excise Act which allowed South African Revenue Services (Sars) personnel to search an individual’s premises without a search warrant, unlawful.
Rogers found that the impugned provisions did not make the “necessary” distinctions “between routine and non-routine searches and between designated and non-designated premises nor do they provide appropriate guidance as to how permissible warrantless searches should be conducted.” The Constitutional Court later confirmed his findings.
Appointed to the Western Cape High Court in 2012, Rogers has Cape Town in his blood: he matriculated from Wynberg Boys High School in 1976 and graduated from the University of
Cape Town with a BA in 1982, an Honours in Classics in 1983 and an LLB in 1985.
Rogers joined the Cape Bar in 1988 and was conferred Silk 11 years later. He has written critically of the institution, stating that it drove up legal fees, making justice inaccessible to the poor.
Western Cape High Court judge Owen Rogers gained experience in competition law as a lawyer — almost an anomaly for judges serving at the Competition Appeal Court, according to its president, Judge Dennis Davis.
If appointed (as seems likely after his nomination by the Judicial Servoce Commission), he would bring this “specialised expertise” to the job, Rogers told the Judicial Service Commission.
Asked by Chief Justice Mogoeng Mogoeng why he should be appointed to the court, Rogers list also included being a “very diligent person” who “prepares thoroughly” for cases, having acting “unfailingly courteous as a judge” in court and his willingness to “engage” parties, his collegiality and prompt delivery of judgments.
In a rare moment of drilling down into jurisprudential values, Davis asked Rogers how he related economics and law, which come together most critically in the Competition Appeal Court.
Rogers lamented the fact that rather than dealing with substantive issues, more procedural matters were coming to the court. He also bemoaned the constraints placed on the Competition Appeal Court by the interpretations of some key legal terms in other countries, where the jurisprudence was more developed.
A known opponent to the legal fraternity’s practise of conferring silk — through the “co-option” of the president — on advocates, Rogers used it as an example to further describe his economic theory, stating that “market forces” should determine the rates charged by advocates.