Capacity: Judge
Further appointments: N/A
First appointed as a judge: 16-12-2017
Key judgments: (1) MNYANDU V OLIPHANT AND OTHERS (A202/2016) [2017] ZAFSHC 61 (20 APRIL 2017) ; (2) MALINGA V S (A164/2016) [2017] ZAFSHC 40 (23 MARCH 2017)
Gender: Male
Ethnicity: White
Candidate Bio
Advocate Phillip Loubser SC holds an LLB from the University of Stellenbosch. he worked as a journalist and sub-editor at Nasionale Pers before entering the legal profession. A control prosecutor in Kimberly, he also worked there, and in Mthatha, as a state attorney. A member of the Law Society of Lesotho, he joined the Free State Bar in 2017.
Loubser has acted for one month at the Free State High Court earlier this year. During that time he heard, amongst others, an appeal against a life sentence for rape on the grounds that the appellant had not been informed of the prescribed minimum sentence prescribed by the Criminal Procedures Act. The sentence had been based on the magistrates court finding that the appellant had raped his victim five times.
With Judge Reinders concurring, Loubser reasoned: “We do not know, for instance, whether the Appellant ever ejaculated during the course of the events, nor do we know how long the intervals between the separate acts of penetration were. In my view, the Court a quo was therefore wrong in concluding that there were five separate incidents of rape. The evidence of the complainant was glaringly insufficient and inadequate to justify the conclusion so reached.”
The sentence was reduced to 14 years imprisonment.
October 2017 Interview:
October 2017 – Interview synopsis:
On occasion, the Judicial Service Commission (JSC) does take to candidates who speak with the kind of home-spun Afrikaner intimacy that leaves one imagining, mampoer, swirls of pipe-smoke and stories emerging on the stoep, rather than the interview chair.
The commission has previously nominated candidates for appointment that have included apologetic former Broederbond members and Afrikaner cattle-farmers-cum-judges. In this instance, they selected Loubser to fill one often two vacancies on the Free State Bench.
Advocate Phillip Loubser SC certainly did appear to be channeling Herman Charles Bosman’s Krisjan Lemmer as he dipped into his past and introspected into his personality to describe various Damascus moments.
Responding to Western Cape Judge President John Hlophe’s question about whether racism existed in the legal fraternity, judiciary and society, and what steps he would take, if appointed, to address this, Loubser “absolutely” agreed.
He said he would “take any sets that I identify to get rid of this thing called racism”. Loubser then told the commission about his personal awakening to apartheid while at school. His father, a preacher in the Dutch Reformed Church had to grant permission for black members of the community to enter the church for funerals of white members of the community.
“He would always grant permission but blacks were then only allowed to sit at the back of the church or upstairs,” recounted Loubser, “in high school, I took it up with him.”
Loubser said he had asked his father why, “if the church was open to all and heaven was open to all”, did blacks require permission and have to subscribe to a particular seating arrangement? His father conceded the point and told the young Loubser that if he allowed blacks in every weekend “all the whites would run away”.
“But wouldn’t you say ‘Praise the Lord! The Church is full!” Loubser had responded to his father. “To his credit he had the courage to listen to a schoolboy… he opened the church to all races [a few years later].”
Loubser lurched from the home-spun and homely to the politically dangerous.
At one point in his interview, Loubser quoted one of the most autocratic of apartheid prime ministers, John Vorster, to explain his self-deprecating nature and initial reticence to apply for judicial appointment after a long career.
At another, in response to Advocate Dali Mpofu SC’s question about why he wasn’t able to speak an indigenous language, Loubser, in his defence, said he did “have lots of black friends” in Lesotho especially, “more than I have white friends”.
Mpofu then asked Loubser why he had left the Eastern Cape and his work as a state prosecutor in the 1980s.
Loubser said he was prosecuting an Umkhonto weSizwe leader for high treason at the time and “all I had was a written confession, a disputed confession” which the accused had said he was “forced to make” after being tortured daily by the then Transkei police.
The accused had maintained that he had been throttled daily with a metal chain that was otherwise used to flush the toilet in the cell he was detained in. The Transkei police, however claimed that the toilet in the accused’s cell had a push button flush.
Loubser had prosecuted on these grounds.
A day before the judgment was going to be handed down, however, he became “very concerned” after the realisation “people in the Transkei commit crimes not because they are common criminals, but because they are fighting for an idea, fighting for his people.”
“I thought, ‘Of course! That is the case [here].” Loubser then drove off to “into the mountains” to the remote jail where the accused was detained.
“I was shocked and amazed that there was in fact a chain on the flush bowl,” he told the commission. Loubser disclosed his findings in court the next day and the activist was acquitted — had be been convicted he may have faced the death penalty.
Loubser said a few weeks later he appeared before two attorneys general for an interview for a promotion and they had a file which included the record the court proceedings. “They said: ‘We have looked at the record and we want an explanation from you as to why you had stabbed the state’s case in the back?’” Loubser told the commission.
Loubser said he told them that he was “an officer of the court. I have to go to sleep with my conscience and with the death sentence in place the man was headed for the gallows.”
The attorneys general apparently told Loubser that they “took a dim view of your attitude”. Loubser then decided that he could not work for the state any longer and “immediately resigned form public service”. He moved to Bloemfontein where he joined the Bar.
Loubser could not remember the name of the activist whose life he saved, only his nom de guerre, but told the commission: “I was told that that man later became a Cabinet minister.”
