Capacity: Judge
Further appointments: N/A
First appointed as a judge: 22-05-2012
Key judgments: (1) Malan V Minister of Defence (691/2011) [2014] ZANCHC 10 (5 September 2014) ; (2) Merementsi v Visser (CA&R 3/2011) [2013] ZANCHC 9 (26 March 2013) ; (3) Du Toit V Roodt and Others (458/2011) [2011] ZANCHC 32 (11 November 2011) ; (4) S V Litsili (K/S 6/11) [2011] ZANCHC 33 (17 November 2011) ; (5) Khauli & Another v S [2011] JOL 26779 (GNP)
Gender: Female
Ethnicity: African
Candidate Bio:
Judge Bulelwa Pakati has dealt with some of the unspeakably dark and grotesque crimes in a country renowned for the profound violence of such deeds.
In 2011 she heard the matter of S v Litsiki. The defendant was charged with the murder and rape of the corpse which he then allegedly robbed — the victim was his 61-year-old mother.
Identifying the “crisp issue” to be determined as “the identity of the perpetrator”, Pakati noted that despite the accused maintaining an alibi at the time of the crime, he was unable to account for the deceased’s blood on his shoes and jeans and a shoe print similar to his on the blood-soaked room floor.
In her judgment, Pakati noted that a “large amount of force was used … The severity of the head injuries sustained by the deceased was to the extent that the deceased could not have survived because of blood found in the airspaces… What is clear is that the accused continued to assault the deceased after her heart had stopped beating. This is evident from the medical evidence … The sexual act was also committed post mortem. The deceased was an elderly woman of 61 years and defenceless.”
In 2014 Pakati found for a warrant officer in the South African National Defence Force (SANDF) after he sued for damages following his arrest by military police and subsequent detention and torture by a senior SANDF officer. Pakati found that the General involved had also infringed the plaintiff’s right to privacy and impugned his dignity, including when he was being visited by a medical doctor.
Pakati has also had to deal with the messy politics of personality and power within the judiciary.
In October 2017 she had come up against her colleague, Violet Phatshoane, for the vacancy as Deputy Judge President of the division. Then, the Judicial Service Commission (JSC) decided to not fill the position after allegations of interference by Northern Cape Judge President Frans Kgomo was revealed during interviews.
Kgomo had written to the commission detailing Pakati’s shortcomings, including that the judge was someone who “can be very moody and aloof” and who has been “shown to make elementary but far-reaching mistakes”.
Pakati said she was “shocked” by Kgomo’s letter and broke down. She later revealed the severe divisions within the Northern Cape court — which, according to her version, appeared to be of Kgomo’s doing — and said she had not previously applied for the job because Kgomo had indicated Phatshoane was his preferred successor.
Pakati and Phatshoane again faced off at the JSC in April 2019, when they both contested the Northern Cape High Court’s Deputy Judge President position. Again, neither of them got the position.
Previously the JSC has been obdurate in granting applications to be transferred to another division of the high court. Whether Pakati’s application is motivated by the need for a clean break from the Northern Cape’s judicial politics will probably be revealed during her interview.
Pakati was permanently appointed to the Northern Cape Bench in 2012 and she has previously spoken about the difficulties and prejudices she faced as a non-Afrikaans-speaker on that Bench.
Pakati has worked as a senior magistrate from 2002-2004 and regional magistrate from 2004-2012. Her career in the magistracy stretches back to 1991, a year after she completed her LLB at the University of Transkei.
October 2019 Interview:
October 2019 Interview Synopsis:
Judge Bulelwa Pakati returns to the JSC for the third time in nearly as many years. Whereas in previous years she had been vying for permanent judicial appointment, and later promotion, this time she only seeks a lateral transfer from the Northern Cape to the Eastern Cape (Port Elizabeth). This being the case, the Chief Justice skipped the usual pleasantries and began by asking her to explain the reasons for the move.
Judge Pakati explained that she had been under immense pressure following the grueling interviews she underwent when running for the senior post of Deputy Judge President of the Northern Cape High Court. As a result of this pressure, she added, her health had deteriorated to the point where she became concerned for her family, whom she supports. She further explained that, as a way to deal with these concerns, she requested an acting stint in the Eastern Cape Division, Port Elizabeth – her hometown. Noticing that this had a positive impact on her health, she then decided to apply for a permanent position. In any event, she explained, the Port Elizabeth High Court needs an experienced black woman judge as the last permanent judge was Justice Nambitha Dambuza, before she was elevated to the Supreme Court of Appeal.
The JSC is notorious for being ruthless on judges who request lateral transfers across provinces. Some have speculated that the JSC generally frowns upon transfers because some judges apply for vacancies in smaller courts but with the ultimate intention of seeking transfers to larger, city-based courts. In previous interviews, a candidate broke down in tears while explaining the circumstances of seeking the transfer but nevertheless the JSC was unmoved and denied her the transfer position.
Luckily, Judge Pakati’s reasons were accepted and her transfer was approved.
April 2019 Interview:
April 2019 Interview Synopsis:
The Judicial Service Commission (JSC) was running about four hours behind schedule by the time Northern Cape High Court Judge Bulelwa Pakati’s interview started at 8.30pm.
This may explain her deliberate, almost somnambulist approach to answering questions. That the interview lasted almost fifty minutes was probably more because of the time it took for Pakati to riffle through her files looking for the relevant documents commissioners were referring her to during questions, and the pace of her responses, than any profoundly substantive engagement.
During an unsuccessful 2017 interview to head the division, Pakati had revealed details of attempted nepotism and favouritism (see profile) involving former Judge President Frans Kgomo and her competitor for the position — then, and again, now — Violet Phatshoane.
Then, Kgomo had written a letter highly critical of Pakati to the JSC and he had done so again for this round — a gnarled, apparently bitter hand from beyond the proverbial grave.
Pakati told the commission that this scandal had not affected the collegiality in the division.
Since her last interview, Pakati had served one term acting as the deputy judge president of the division. However, she admitted that despite asking for work during that time, none had been forthcoming from her judge president.
Asked about being nominated by various attorneys in Kimberley, and whether she felt this may, in the future, cause an indebtedness or an expectation of repayment when she presided in court, Pakati said she did not believe this would happen.
She also pointed out that the lawyers who had nominated her had previously appeared in her court and she had found against them.
Pakati was also quizzed about attempts to bribe her in a diamond smuggling trial and why she had only notified the authorities, including the Office of the Chief Justice, when the second state witness was on the witness stand (four years after the offer of a bribe). Or had not recused herself earlier. Pakati maintained that until that point, she had perceived the offer to bribe as “hearsay”: that it had been relayed to her by a “home boy” who was a policeman — whom she had told she was not interested in receiving any backhander.
Neither she nor Phatshoane were recommended for appointment.
October 2017 Interview:
October 2017 Interview Synopsis:
The apparently Machiavellian hand of former Northern Cape President Judge Frans Kgomo, who retired earlier this year, dominated Judge Bulelwa Pakati’s almost two-hour-long interview.
Kgomo had written to the Judicial Service Commission (JSC) — as he had done before the April round of interviews to decide who would succeed him as the head of the court and also fill the deputy judge president position — making extremely critical remarks about Pakati.
Kgomo’s April intervention is believed to have led to the withdrawal of Judge Cecile Williams, a judge with a decade’s worth more experience than her competitor, Judge Violet Phatshoane, who was also in the running for the current vacancy. The commission decided to leave the deputy judge president position vacant at the time.
Kgomo’s letter went into great detail about Pakati’s shortcomings, including that the judge was someone who “can be very moody and aloof” and who has been “shown to make elementary but far-reaching mistakes”.
Pakati said she was “shocked” by Kgomo’s letter and in initially trying to respond to the allegations broke down, needing a few minutes to gather herself.
Later, as commissioners Sifiso Msomi (representing the attorneys’ profession) and member of parliament Julius Malema pushed Pakati on the nature of the letter and the possible motivation behind it, she revealed the severe divisions within the Northern Cape court — which, according to her version, appeared to be of Kgomo’s doing.
Pakati said that she had not applied for the position earlier this year because Kgomo had indicated he “had hunted” Phatshoane. “I did not apply in April because I knew that the JP [Kgomo] said this is the person he wanted, so I knew it was useless,” said Pakati.
Responding to Msomi’s question about whether there was a perception in the Northern Cape judiciary that Phatshoane was “the anointed one”, Pakati said she believed this was the case.
Kgomo had, according to Pakati, called her in April after Phatshoane’s unsuccessful interview for the JP and DJP positions. Pakati told the commission that the retired judge president had told her at the time that “Phatshoane shouldn’t worry, because even if she goes [out], her position will be secured [later]”.
Outside of the messy world of judicial politics, Pakati was asked questions about the “huge challenge” of how she would address gender representation on the Bench (increased acting appointments and mentoring), “tools” to facilitate case-flow management and the speedy delivery of judgments (“pressurising” judges “without” putting pressure on them), her opinion on whether the eleven South African languages should be used as the official language of record in courts (all eleven should be used, but English remains as the official language of record) and whether her experience in leadership positions as a magistrate should be considered as weighty enough for appointment (“yes”).
