As a North Gauteng High Court judge sitting in Pretoria, Phatudi has had both interesting cases linked to issues within the legal fraternity, and experienced rather odd things in matters he was adjudicating.
In 2013 Phatudi was hearing a multi-million rand civil matter in which high-profile advocate JaapCilliers was involved. In a strange twist, Cilliers, whose clients include The Waterkloof Four and DrWouterBasson— head of the apartheid government’s chemical and biological warfare project — was injected in the buttocks with an unknown substance outside court, causing him to be admitted to hospital.
On more prosaic matters, Phatudi heard an application brought by Sandton advocate RoshneeMansingh for the courts to confirm that the South African president had no power, in terms of the Constitution, to confer silk, or senior counsel status on advocates — a practise, derived from England, that has proved lucrative for advocates with the “SC” affixed to their titles, but which has been decried as elitist by critics.
He found in favour of Mansingh, stating that the drafters of the Constitution did not codify the practise in the country’s founding document, or give the power to confer silk to the president. The intention, ruled Phatudi, was of “having a break with the past” and an attempt to avoid “adopting concepts into the Constitution which are not based on the will of the people of South Africa.”
The judgment was overturned by both the Supreme Court of Appeal and the Constitutional Court.
Nominated by the Black Lawyers Association, Phatudi obtained a B.Juris and LLB from the University of Limpopo. As an attorney he founded his own practise in 1996 which he ran until becoming a judge on 2009.
Phatudi is another candidate who unsuccessfully interviewed to head the Limpopo division in April 2015.
Phatudi was skewered by Advocate Mike Hellens SC about his poor judgment writing skills and apparent disregard for what happened those rulings appealed to higher courts – deficiencies which the commissioner observed should disqualify him for the deputy judge president position.
Hellens’ carefully constructed series of questions was an excellent example of cross-examination technique.
Representing the advocates profession at the commission, Hellens started by asking Phatudi whether it was the function of a division’s judge president and deputy judge president to oversee judgments to ensure “standards are kept”.
Phatudi responded that judges must be independent. Hellens qualified that his question pivoted on “monitoring the quality of work” and “keeping an eye on the structure of judgments and delays” rather than anything prescriptive. He then raised one of Phatudi’s judgments which had been overturned by the Supreme Court of Appeal, a decision which the judge said, he was “not aware” of.
Hellens honed in on an apparent lack of diligence by Phatudi, for not following his judgments, or learning from an appellate court ruling which was “somewhat harsh and strident” in its criticisms which included “a paucity of reasoning on damages” which included “almost, a figure plucked from the air”.
“There are a number of issues, here,” said Hellens, circling his prey: “That you don’t read the Law Report… You don’t monitor judgments on appeal… As a DJP aspirant, you don’t have the qualities to oversee, in the most neutral sense of the word, other judgments.”
Phatudi was left bludgeoned like Rocky Balboa after a losing boxing bout.