Current position: Cape Town Chief Magistrate
Date appointed: 2016
The Chief Magistrate in Cape Town, Thulare completed his term as the president of the Judicial Officers Association of South Africa (Joasa) in July this year, causing a stir during his address when he was critical of the concentration of decision-making power and representation in the judiciary. A structure which he felt was “paternalistic” towards the magistracy.
Legal journalist Carmel Rickard, in an article, described Thulare and Joasa’s new vision for judicial officers which urged “the Minister of Justice and Correctional Services to back calls for a symposium that would include ‘judicial officers of all ranks’. The proposed symposium, given strong support by Joasa’s members during the AGM’s business meeting, would allow all the country’s judicial officers to define what was meant by a ‘single judiciary’ and to identify the consequences that would follow from that definition.”
Thulare was critical of the current structure which sees chief magistrates and regional court presidents sidelined and absent from heads of courts meetings convened by Chief Justice Mogoeng Mogoeng.
According to Rickard, Thulare described magistrates being represented by provincial judge presidents at these meetings as being like “the days of ‘marital power’” and told his audience that the Office of the Chief Justice was not a “judicial kingdom”.
How these comments sit with Mogoeng will make for interesting watching during Thulare’s interview for a position on the Western Cape High Court Bench.
Thulare has acted at the Gauteng Division of the High Court in 2014 and 2016, and in the Western Cape Division of the High Court in 2017 (one term), 2018 (the entire year) and 2019 (one term).
When not writing judgments Thulare has found the time to write a religious book, Y 2 4 Jesus: Zion, Where Indigenous Knowledge Meets Christianity.
His findings in the 2019 high court case, S v Madhinha, was eviscerated by another high court judgment, Mong v Director of Public Prosecutions and Another.
In Madhinha, the accused attempted to obtain a police clearance certificate and subsequently discovered that he had a criminal record due to an admission of guilt fine paid eight years previously. The accused had been arrested, detained and given a written notice which included a provision for payment of an admission of guilt fine without appearing in court. The accused paid the fine and was released. In the matter before Thulare and judge Mokgoatji Dolamo the accused applied for the deemed conviction and sentence to be set aside.
Thulare, with Dolamo concurring, flung that a “conviction and sentence following an entry into the admission-of-guilt record book by the clerk of the criminal court in the magistrates’ court is not a conviction whose record is permanent. It was not a conviction and sentence to be entered in the criminal record system by the South African Police Service.”
The conviction and sentence were thus set aside, with a copy of the order to be served on the Minister of Police.
In Mong, however, a differently composed bench of the Western Cape High Court declined to follow the Madhinha decision. Judges Robert Henney and Monde Samela held that: “It is clear that the decision of this court in the case of Madhinha, besides the fact that it is clearly wrong, will have, as a consequence, a disastrous effect on our criminal justice system, especially when it relates to the payment and the legal effect of an AOG [admission of guilt] fine for certain offences. … The court in that case, with the greatest respect, clearly and demonstrably misinterpreted the law regarding this aspect.”
The court further held that the Madhinha decision was at odds with existing Appellate Division authority, had “simply failed to examine the aim and purpose of the proviso in subsection (7) of section 57” of the Criminal Procedure Act, and that it potentially led to unequal treatment of those who chose to pay an admission of guilt fine compared to those who did not.
The court held that the decision “would also have deleterious and far reaching consequences for society where, for example, an abusive partner would regularly commit a relatively serious violent offence, like common assault, on his or her partner, would choose to pay an AOG fine and would then not attract a previous conviction.”
In 2017, with the Equality Court sitting in the Cape Town Magistrates’ Court, Thulare was called upon to rule whether the controversial installation F-k White People constituted hate speech. The installation by Dean Hutton formed part of The Art of Disruptions exhibition at the Iziko South African National Gallery in Cape Town.
The matter had been brought before the Equality Court by the separatist Cape Party which has advocated for the independence of the Western Cape from the rest of South Africa.
Thulare found the work did not constitute hate speech. Drawing on Hutton’s artist statement, Thulare said the work had drawn “South Africans to a moment of self-reflection”.
He found the words‚ properly contextualised and understood‚ conveyed the message: “Reject‚ confront and dismantle structures‚ systems‚ knowledge‚ skills and attitudes of power that keep white people racist.”
Thulare found that the words “white” and “people” were not directed at all whites‚ but rather, to a system of oppression inherent in “white domination”.
Forty-nine year-old Thulare holds a B Iuris (1996), an LLB (1998) and an LLM (2002) from the University of South Africa.
Thulare worked as a prosecutor and an attorney before being admitted as an advocate in 2002. He joined the magistracy in 1999 and served as a senior magistrate from 2005 until 2016 when he was appointed the Chief Magistrate in Cape Town.
October 2019 JSC Interview:
October 2019 JSC interview Synopsis:
The issues around judicial governance hit the JSC front and centre in the fiery interview of Magistrate Daniel Thulare for a seat on the Western Cape High Court bench. Following a controversial speech at the AGM of the Judicial Officers Association of South Africa (JOASA), Thulare repeated many of his assertions in his interview.
He introduced the issue somewhat elliptically by referring to the CJ’s tie. To the CJ, he suggested, his tie may mean nothing, but the magistrates would like the CJ to wear the tie of judiciary, and not the tie of the Office of the Chief Justice or OCJ.
Why the concern about the OCJ? The OCJ is essentially a ‘quasi-government’ department which has been established to take on the administrative functions of the judiciary. Judicial independence is not just a matter of judges making decisions without fear, favour or prejudice. Judicial independence includes security of tenure, financial security and institutional independence, including control of the day-to-day operations of courts. These have been handed to the OCJ, as a separate department to the Department of Justice. However, only the matters relating to the High Court, SCA and Constitutional Court have been handed over to the OCJ – while the magistracy remains stuck in the Department of Justice.
Other governance issues that have been raised in Parliament include that the CJ does not provide an Annual Performance Plan for the judiciary to the Justice portfolio committee, nor does he report separately on what we might regard as ‘his’ expenditure. He also does not allow the OCJ to do these things, as they are within his area of responsibility.
The Chief Justice is the head of the judiciary – not of the high courts only, and not head of the OCJ, despite its name. He should therefore, according to Tulare, be “wearing the tie of the judiciary”, and including the representatives of all judicial officers in the meetings that the CJ convenes to govern the judiciary.
The Chief Justice took exception to Thulare characterizing these meetings as being at his “behest and pleasure”, while Thulare maintained that the meetings were not called in a consultative way.
The Chief Justice went on to ask Thulare if there is engagement between the leadership of the judiciary and magistracy, or if the decisions are imposed on the leadership. Thulare said yes, they were imposed at operational level. He cited as an example the report of the Chief Justice to the nation on Annual Judiciary Day, which had said nothing about the magistracy. The CJ responded by pointing to efforts to set the performance indicators of the magistracy as being under way, and reported on in the document.
This brisk debate ended when Sylvia Lucas appeared to draw the attention of the Chief Justice to time passing, and the interview was brought to a close.