Capacity: Magistrate
First appointed: November 1995 (Ixopo, KZN)
Further appointment: 1999 (Regional Court magistrate, KZN)
Gender: Male
Ethnicity: African
Date of Birth: December 1958
Qualifications: Dip. Iuris, B.Iuris, LLB (UniZulu) LLM (UKZN)
Key judgments:
- S v Ndlovu and Mkhize (CC54/2019) ZAKZPHC
- Mr Cool Air Conditioning v uGu District Municipality (2075/19) ZAKZPHC
- MEC for Finance (KZN) v Brilliant Telecommunications Pty (Ltd) (12226/18P)
- First Accurate CC v Minister of Police (8691/2020) ZAKZPHC
Candidate Bio:
As one of the most senior magistrates at the Regional Court in Pietermaritzburg, Magistrate Linus Bhekizitha Phoswa is well-recognised in the legal circles of the KZN capital.
Some know him for his strict punctuality – he often takes exception to practitioners who arrive late at his court. Others know him for his more charitable endeavours, as the founder and coordinator of the St Charles Location Youth Development charity, the president of the Bulwer Football Association, and the founder of the Ukhahlamba Deanery Mass Choir.
Phoswa started his legal career as a clerk for the Department of Justice, stationed at the Vulindlela Magistrates Court. He rose through the ranks to become a state prosecutor in the criminal courts, and later becoming a criminal magistrate in the district courts in 1995. He was promoted to the regional court in 1999, and has been there since, dealing with mainly criminal but also some civil cases.
In 2010, he held a 6-month stint as an acting judge in the KZN High Court in Pietermaritzburg. Curiously, a decade was to pass before he was invited once again to sit on the KZN bench as an acting judge in 2021.
Although Phoswa has vast experience in criminal law, his exposure to civil law (including constitutional law, administrative law, commercial law, and family law) is rather limited. This lack of exposure to civil law appears to be the main thorn on the side of practising advocates who have appeared before Phoswa at the High Court in Pietermaritzburg.
In comments submitted to the JSC the General Council of the Bar (the umbrella body of a number of local bars) says that there have been “informal complaints” by members of the Pietermaritzburg Bar who take issue with Phoswa’s “failure to grasp and apply foundational principles and concepts of civil law and procedure”. They cite two examples where Phoswa allegedly mishandled urgent land ownership disputes. The Bar’s overall assessment is that Phoswa is “good with criminal law” but “weak on civil law”.
In Mr Cool Air Conditioning (Pty) Ltd v Ugu District Municipality Phoswa was called upon to decide a procurement contract dispute where Mr Cool, a provider of air-conditioning equipment sought to review and set aside the Ugu District Municipality’s award of a tender to a competing provider, Ithemba Lempumelelo Construction. Even though Mr Cool was shown to have the capacity and ability to do the work, it was disqualified for failing to sign a single form submitted as part of its bid documents. In a terse judgment, with the reasoning constituting only a single paragraph, Phoswa found in favour of Mr Cool and ordered that the tender be rerun. Surprisingly, Phoswa order that Mr Cool and all other parties bear their own costs, which is a deviation from the normal rural that “costs follow the result” (i.e., the loser pays the winner’s costs).
In MEC for Finance KZN v Brilliant Telecommunications, Phoswa was again called upon to decide a tender dispute. This time, the KZN Finance MEC had embarked on a ‘self-review’ – where a government entity takes its own decision on judicial review. This is a particularly controversial area in the law and has animated both academic debates and court judgments. The key question is whether government entities can apply to court to have their own decisions set aside (without anyone asking) in order to escape contractual obligations, particularly using the governing statute, the Promotion of Administrative Justice Act. There are conflicting views on the question.
In arriving at his decision, Phoswa seems to completely avoid the question but instead focuses on the narrow issue of the substance of the tenders and whether there was full compliance in every step (i.e., whether all the t’s were crossed and the i’s dotted). Unsurprising in a large complex tender, there was non-compliance. The tender decision was therefore set aside.
Although Phoswa indicates in his JSC application form that none of his decisions have been taken on appeal, it is still surprising that a judge would pass up such a golden opportunity to develop the law and resolve a vexing question.
Phoswa holds four legal questions: a Diploma Iuiris, a Bachelor Iuiris, a Bachelor of Laws, and a Master of Laws. The former three are from the University of Zululand, while the latter is from UKZN.
At 64, Phoswa is the most advanced among his competitors in the April 2022 interview round. If appointed, would serve only five years before reaching the mandatory retirement age of 70 (although the possibility exists that his tenure might be extended to 75).
In the October 2021 round, then JSC chairperson Justice Zondo asked if there is “value for money” in appointing candidates who would serve for a short period before they retire on a judge’ salary for the rest of their lives. It would be interesting to see if Phoswa is asked the same.
April 2022 Interview
