Capacity: Judge
First appointed as judge: 2013 (Western Cape)
Further appointments: 2016 (Competition Appeal Court)
2022 (Constitutional Court)
Gender: Male
Ethnicity: White
Date of Birth: October 1958
Qualifications: BA cum laude LLB (UCT)
Key Judgments:
- Electoral Commission v Minister of Cooperative Governance and Traditional Affairs and Others (CCT 245/21) [2021] ZACC 29 (3 September 2021)
- Central Energy Fund SOC Ltd and Another v Venus Rays Trade (Pty) Ltd (4305/18) [2020] ZAWCHC 164 (20 November 2020)
- Department of Agriculture, Forestry and Fisheries and Another v B Xulu and Partners Incorporated (6189/2019) [2020] ZAWCHC 3 (30 January 2020)
- Road Accident Fund v Mohohlo2018 (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 Scheme2018 (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)
Candidate Bio:
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.
It was Xulu’s complaint that sunk Roger’s April 2021 interview for promotion to the Supreme Court of 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 in 2019 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 that same April 2021 interview Rogers was asked by Advocate Dali Mpofu SC why he hasn’t put himself forward to act in the Constitutional Court. A blushing Rogers explained that his skills were better suited to a generalist court like the SCA. Within a few weeks of this interview, Rogers was invited to act in the apex court.
The whole country had to hold its collective breath over the fate of the 2021 local government election as the Constitutional Court deliberated over the issue in Electoral Commission v Minister. In terms of section 159(2) of the Constitution, local government elections can only be held 5 years and 90 days from the last election. In this case, the last election was held on 4 August 2016 and the next election could only be held on or before 4 November 2021. However, due to the Covid-19 pandemic, the Independent Electoral Commission wanted the Concourt to order a special dispensation where the court would order that the IEC had not complied with its constitutional duties due to a supernatural impossibility but will have until February 2022 to do so. In a majority judgment (Zondo ACJ writing for the minority), Rogers found that the Concourt had no power to make such orders and instead ordered that the IEC do all in its power to run the elections on or before 1 November 2021. The IEC scrambled to comply with the court’s order, but the elections were successfully held on 1 November 2021.
Rogers has experience in competition law and was appointed to the Competition Appeal Court in 2016. 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.
In Central Energy Fund Rogers was called upon to unscramble the sorry saga of the sale of 10 million barrels of the country’s strategic oil reserves in the dead of night. The case involved 6 legal teams with 17 counsel, and the judgment ran to 588 paragraphs. In the end, Rogers set aside the decision to sell the oil to various international oil companies, ordering that all monies must be paid back with moderate interest.
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.
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 2022 Interview:
Judge Owen Roger’s April 2022 interview for a position on the Constitutional Court was successful. He was nominated for appointment.
April 2022 Interview Synopsis:
That newly appointed Chief Justice Raymond Zondo is cut from a different cloth to his often imperial predecessor, Mogoeng Mogoeng, became apparent early on in the interview of Western Cape High Court Judge Owen Rogers.
Zondo disclosed that he had invited Rogers to make himself available for these interviews after having asked him to act at the Constitutional Court — a sense of foresight and appreciation of the needs of the apex court. Later in the interview, Zondo revealed that Rogers was not the only judge that he had invited, but that he had been turned down by others.
Rogers has built a reputation as a very hardworking judge with intellectual heft and expertise in areas of law that are much needed at the Constitutional Court.
The candidate’s experience as a “generalist” with experience in a variety of law, including administrative and public law; law of delict; pension fund, and tax matters, and commercial law was mentioned approvingly.
Observing that former Chief Justice Arthur Chaskalson and other heads of courts had already set this precedent of inviting candidates to avail themselves for a particular position, Zondo was also quick to remind Rogers — and the public and those politicians swift to trigger social media smear campaigns — that the invitation “obviously doesn’t carry with it any promise” of appointment.
Rogers described his acting stint at the Constitutional Court as “very interesting” where the “pace of the work” was “unrelenting” but the atmosphere collegial: “I didn’t feel my voice was less heard,” he told the commission.
Unsuccessful during an interview for the Supreme Court of Appeal in April last year , and in 2019, Rogers said he had been “surprised” by the invitation to act, to which Zondo responded that he had made “very important contributions” including writing two unanimous judgments.
Zondo asked Rogers about a matter regarding causation which, because of negligence by staff at Thembisa Hospital had left a baby with lifelong cerebral palsy. Litigants on behalf of the baby had applied for leave to appeal to the Constitutional Court after decisions against them in the lower courts.
Rogers said that while what happened to the baby was lamentable, he had to apply the law — and had returned to the language of the law — in deciding “what is a Constitutional matter” and whether that particular case could be heard at the apex court.
The application was eventually dismissed and Rogers said that “sometimes bad factual decision-making has to be left alone” and that one shouldn’t “dress up a factual reappraisal as a Constitutional matter”.
Asked by ANC parliamentarian Thamsanqa Dodovu to describe his judicial temperament, Rogers said he was the kind of judge who engages with counsel during argument and that while “vigorous” in those interactions, remained “courteous and polite”. He said he preferred “debating” issues with counsel rather than “browbeating them”.
Inkatha Freedom Party MP Narend Singh noted comments made in a 2019 interview that, during acting stints at the Supreme Court of Appeal, Rogers was described by colleagues as “high-handed”, “arrogant” and “difficult to work with.”
Rogers said it was difficult to respond to these allegations without detail but that he found it “distressing that people would perceive him that way because I don’t see myself as arrogant”.
The subject of transformation of the judiciary and the Constitutional Court cropped up when attorney’s profession representative, Mavuso Notyesi suggested that Section 174(2) of the Constitution – which calls for a demographic representation of the country’s population on the Bench — should also include geographical representation.
In a lighter moment, Rogers joked that, perhaps that was a good idea since Cape Town — where he was from — was underrepresented at the Constitutional Court.
But then he started to dig himself a hole by trying to grapple with a question about his transformative suitability as a white male which had not been asked of him. Rogers attempted to argue that because the court was so small — composed of eleven judges with currently no white judges — the appointment of a white male “wouldn’t make a material difference” or be considered a “retrograde” appointment considering the its current composition. This, Rogers suggested, allowed the JSC to consider candidates on merit.
The interview swiftly went from breezy to uncomfortably windy.
Another uncomfortable period in the interview revolved around a Constitutional Court judgment which Rogers had written which had been hastily recalled after hand-down because it had not considered the submissions of one of the litigants — on a misapprehension that these had not been submitted.
Rogers said his clerk had twice checked with the court’s general office and had been told, both times, that those submissions were never handed in. He said there had been a mistake in the general office which was now being investigated. Zondo confirmed that this was indeed the case.
Rogers was asked about his involvement as one of ten judges to lodge a complaint against colleague Mushtaq Parker which related to sordid stories also implicating the division’s judge president, John Hlophe.
As an advocate, Rogers had written critically about the practise of being conferred silk, which he argued was merely a license to charge higher fees and print money. He was asked about this by Jomo Nyambi, an ANC MP. Rogers reiterated that this practise limited access to justice. He said while his views on the matter had not changed he had “given it up as a lost cause.”
Rogers was listed by the JSC for potential appointment.
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.
