Further appointments: 2017 (Judge – Competition Appeal Court)
First appointed as a judge: 2013, (Western Cape)
Date of Birth: 22 October 1958
- Road Accident Fund v Mohohlo 2018 (2) SA 65 (SCA)
- Drake Flemmer and Orsmond Inc and Another v Gajjar NO 2018 (3) SA 353 (SCA)
- Yarona Healthcare Network (Pty) Ltd v Medshield Medical Scheme 2018 (1) SA 513 (SCA)
- Scalabrini Centre, Cape Town and Others v Minister of Home Affairs and Others 2013 (3) SA 531 (WCC)
- Nkata v Firstrand Bank Limited and Others 2014 (2) SA 412 (WCC)
Western Cape High Court Judge Owen Rogers appears as adept with the violin and piano as he is with the law, according to his supporters.
Previously unsuccessful when interviewed for judicial appointment, which drew condemnation from the sections of the legal fraternity who considered him one of the country’s top senior counsel, he was eventually appointed to the Western Cape High Court division in 2013.
His detractors, however, include Barnabas Xulu, the personal lawyer of Rogers’ boss, the judge president of the Western Cape Division of the High Court, John Hlophe.
Xulu has lodged a complaint of gross judicial misconduct with the Judicial Service Commission’s Judicial Conduct Committee against Rogers and nine other Western Cape judges for their refusal to share a panel with fellow judge, Mushtak Parker. Parker is embroiled in the ongoing exchange of misconduct charges between Hlophe and his deputy, Patricia Goliath, which also involves Hlophe’s wife, also a Western Cape judge.
The matter has brought the division to the brink of implosion.
The ten judges refusal to work with Parker is apparently based on the premise that his version under oath of incidents related to the unseemly matter — including an alleged assault on him by Hlophe — changed dramatically from what he had confided in them.
But Xulu has another, more expensive axe, to grind with Rogers. In January 2020 Rogers found that a service level agreement between Xulu’s company BXI, and the provincial department of environment, forestry and fisheries was unlawful and ordered that R20-million be repaid to the state. He also ordered that Xulu present himself and explain why he shouldn’t be held personally responsible for the repayment.
At the time of publishing the JCC was still considering the complaint. Xulu has petitioned the Supreme Court of Appeal to hear his appeal.
Rogers has acted at the SCA from 2017-2019 and again in 2021. The two year break appears curious and it may be interesting if it were linked to Rogers’ previous appearance before the JSC to be interviewed for a vacancy at the SCA.
Then SCA president Mandisa Maya said that a vox pop of judges at the appellate division had revealed criticisms of Rogers alleged “arrogance” and “slavish attention” to foreign jurisdictions for precedent. Some judges had also found him “difficult to work with” apparently.
Rogers said he was “saddened” by these comments and that he had been unaware of these sentiments since he had worked hard, with collegiality and to ensure that high standards were maintained.
In Road Accident Fund v Mohohlo the appellate court was asked to decide whether damages for loss of support was due to the “aunt” of the deceased, who had cared for him from a young age.
Noting that there was precedent for extending the “claims for loss of support to persons who do not fall within categories recognised by the common law” Rogers (with the rest of the Bench concurring) held that it was necessary to consider the values underpinning the Constitution, including ubuntu. He found that in terms of Section 211(3) of the Constitution, “the court must apply customary law when that law was applicable, subject to the Constitution and any legislation that specifically deals with customary law”.
Rogers held that whilst no expert evidence as to customary law had been led, “the plaintiff testified as to what was required by her culture and her evidence was not put in issue. It may well be that, once she agreed to care for Otsepeng [her nephew] following family consultation, she had by customary law a legal duty to support him but it is unnecessary to go so far. On her evidence, she at least felt under a duty to do so. She started caring for him when he was still an infant and continued to maintain him until he became self-supporting.
Her behaviour, and the way Otsepeng reciprocated when he became an adult, gave expression to ubuntu. For all practical purposes the plaintiff adopted him, even though according to her there was no formal process of adoption in her culture.
The de facto relationship between them was that of mother and child. This de facto relationship was every bit as real as the de facto life partnerships which our courts have accepted as giving rise to reciprocal duties of support.”
Rogers held that it would be consistent with the legal convictions of the community to recognise a reciprocal duty of support between the plaintiff and Otsepeng. The appeal was dismissed with costs.
Rogers has experience in competition law and was appointed to the Competition Appeal Court in 2017. During his interview before the JSC, Rogers described himself as a “very diligent person” who “prepares thoroughly” for cases and is “unfailingly courteous as a judge”. He also listed a willingness to “engage” parties, his collegiality and prompt delivery of judgments as other personal attributes worth mentioning.
One case at the court involved a bid by construction company Group Five, to have complete access to the Competition Tribunal’s investigation record into their alleged collusion with other companies before preparing its answering papers.
Rogers, with two other judges concurring, found that disputes relating to “legally privileged” or “confidential” documents would have to be resolved by a process separate from Group Five’s obligations to file its papers. Stating that both parties had misunderstood their obligations, he ordered them to pay their own costs.
In a 2013 High Court ruling which declared the Department of Home Affair’s closure of the Cape Town Refugee Reception Office unlawful, Rogers was mindful of the administrative effects it would have on asylum-seekers attempting to apply for, or renew, their permits.
He further noted that the office’s closure would affect refugees’ job security, family life and open them up to further persecution by the state security apparatus.
In Gaertner and Others v Minister of Finance and Others, he declared the sections of the Customs and Excise Act which allowed South African Revenue Services (SARS) personnel to search an individual’s premises without a search warrant, unlawful.
Rogers found that the impugned provisions did not make the “necessary” distinctions “between routine and non-routine searches and between designated and non-designated premises nor do they provide appropriate guidance as to how permissible warrantless searches should be conducted.” The Constitutional Court later confirmed his findings.
Appointed to the Western Cape High Court in 2013, Rogers has Cape Town in his blood: he matriculated from Wynberg Boys High School in 1976 and graduated from the University of Cape Town with a BA in 1982, an Honours in Classics in 1983 and an LLB in 1985.
Rogers joined the Cape Bar in 1988 and was conferred Silk 11 years later. He has written critically of the institution of silk status, stating that it drove up legal fees, making justice inaccessible to the poor.
April 2021 Interview:
April 2021 Interview Synopsis:
Perhaps all the politicking and turmoil which has engulfed the Western Cape High Court, bringing it to the brink of implosion, has started to take its toll on the previously boyish and bookish-looking Judge Owen Rogers.
The judge turned up for his interview looking like a washed-out, frayed at the edges, Harry Potter.
Much of the tension in Cape Town revolves around the division’s judge president, John Hlophe. Rogers, along with nine other judges from that Bench have had a complaint of gross judicial misconduct lodged against them with the Judicial Service Commission’s Judicial Conduct Committee (JCC) by Hlophe’s personal lawyer Barnabas Xulu.
Xulu had also lodged a separate complaint against Rogers for not recusing himself from hearing a January 2020 matter where the judge eventually found that a service level agreement between Xulu’s law firm BXI, and the national Department of Environment, Forestry and Fisheries was unlawful and ordered that R20-million be repaid to the state. He also ordered that Xulu present himself and explain why he shouldn’t be held personally responsible for the repayment.
SCA president Mandisa Maya asked Rogers about this at the very beginning of the interview. He said that he had not received any correspondence about the two complaints at the time of the interview.
Rogers added that he and the other nine judges who had been cited in one of Xulu’s complaint for refusing to sit with another judge, Mushtak Parker, had also laid a compliant against Xulu with the Legal Practise Council. Parker has been implicated in changing his version of events regarding an allegedly violent incident involving Hlophe,
Advocate Dali Mpofu SC asked Rogers why he had not applied for a position at the Constitutional Court where “the kind of work you have done would add value”?
Rogers responded that he “had no intention to apply there” because he felt “my talents are better employed at a generalist court… where I can go through cases very quickly.”
Regarding the decision by ten judges to not sit with Parker, Rogers said that he believed that, in “good conscience” it was the correct decision which was borne out by the JSC which had dismissed a complaint regarding it brought by a member of the public.
Rogers said the judges felt that it was a position they felt they “were entitled to take” and that while Hlophe had, afterwards, written to the judges “stating that he thought our attitude inappropriate and that he trusted that if we were allocated [cases] with the judge in question, we would not refuse to sit with him. Perhaps some realpolitik came to prevail because subsequent to that he never allocated any of us with the judge in question… so push never came to shove.”
Asked about his role in the transformation of the judiciary, Rogers said that while he was felt it was “paternalistic to take the initiative in these cases” he had, both at the Western Cape Bench and the SCA, assisted black junior and acting judges to “debate issues without looking at the draft judgment”. He said from the feedback he had received from these colleagues he was assured that he did not “appear condescending” in this assistance.
Wits Professor Engela Schlemmer, who represented the academy on the JSC, said she was “quite impressed” by the “additional research” apparent in his judgments and wondered how well equipped the Western Cape High Court’s law library was?
He said that the division had not had a qualified librarian for approximately seven years and that “the selection of new books falls to me”.
Justice minister Ronald Lamola asked Rogers about his contentious position where he had been critical of the institution of silk, which he had written about previously. Rogers said he found the conferring of silk a hinderance to access to justice since it priced advocates out of the reach of ordinary people.
The highly qualified Rogers appeared to suffer for being drawn into the messy and tawdry politics of the Western Cape Bench and was not recommended for appointment by a commission where some members are said to have demonstrated a loyalty and partisanship for his boss, Hlophe, rather than their own consciences
April 2019 Interview:
April 2019 Interview Synopsis:
Some members of the Judicial Service Commission (JSC) become visibly insecure when very smart people are being interviewed — a defense mechanism that often reveals more about the interviewers, than those seeking jobs.
The interview of Western Cape High Court Judge Owen Rogers was one such interview.
On the toxic situation at the Supreme Court of Appeal (SCA), Rogers said he generally found it a “welcoming” place but that a quite senior judge had talked to him in a manner which was “very rude” while hearing a case, and that this “unsettled me for a few days”.
SCA President Madisa Maya said a vox pop of judges at the appeals court threw up observations which included that Rogers was “difficult to work with”, he was “not a team player… who swam upstream,” was “arrogant” and “tended to pay slavishly attention too foreign authorities” when looking for precedent in considering a case.
Rogers said he was “saddened” if that was the impression created since he had a “genuine love of the law with a strong work ethic…perhaps they see my passion as being difficult”. But Rogers was unapologetic in his approach to his work, saying he would not stop being rigorous: “One should not dumb down.”
“I don’t see myself as arrogant, if that is how I come across, it is something that I shall seek to remedy,” he told the commission.
Rogers has written several articles (see profile) and he was tested on his ambivalence to the practice of senior advocates being conferred silk, his role in transformation of the Cape Bar while he practiced there and whether age was an impediment to his being appointed.
October 2016 Interview:
October 2016 Interview Synopsis
Western Cape High Court judge Owen Rogers gained experience in competition law as a lawyer — almost an anomaly for judges serving at the Competition Appeal Court, according to its president, Judge Dennis Davis.
If appointed (as seems likely after his nomination by the Judicial Servoce Commission), he would bring this “specialised expertise” to the job, Rogers told the Judicial Service Commission.
Asked by Chief Justice Mogoeng Mogoeng why he should be appointed to the court, Rogers list also included being a “very diligent person” who “prepares thoroughly” for cases, having acting “unfailingly courteous as a judge” in court and his willingness to “engage” parties, his collegiality and prompt delivery of judgments.
In a rare moment of drilling down into jurisprudential values, Davis asked Rogers how he related economics and law, which come together most critically in the Competition Appeal Court.
Rogers lamented the fact that rather than dealing with substantive issues, more procedural matters were coming to the court. He also bemoaned the constraints placed on the Competition Appeal Court by the interpretations of some key legal terms in other countries, where the jurisprudence was more developed.
A known opponent to the legal fraternity’s practise of conferring silk — through the “co-option” of the president — on advocates, Rogers used it as an example to further describe his economic theory, stating that “market forces” should determine the rates charged by advocates.