Profile
Current position: Judge on the Eastern Cape High Court, Bhisho Division
Date became a judge: October 2019
Date appointed: Awarded silk in 2014
Candidate bio:
During his career as a lawyer Zilwa has been involved in some of the most controversial cases in the Eastern Cape, including the battle over the exhumation and reburial of the remains of former president Nelson Mandela’s children and a case questioning the legitimacy of the ANC’s 2017 Eastern Cape provincial conference where delegates hurled chairs at each other during bouts of violence.
According to his application form, Zilwa has acted “almost annually” in the Eastern Cape High Court from 1997. In 2008 and 2010 he also acted at the Labour Court in Johannesburg.
In 2013, as part of a full Bench in the Eastern Cape, he agreed with the reduction of a rapist’s sentence from life imprisonment to 20 years. He did this after a co-accused in the rape trial had previously appealed separately and seen his sentence similarly reduced.
“I am of the view that a lengthy term of imprisonment, but not life imprisonment, is called for and it would meet the justice of the case. I see no reason to deviate from the 20 year imprisonment term that was imposed on appeal to the other person who was convicted of the same offence, which sentence I consider just and proper in these circumstances,” Zilwa found.
Zilwa, who was nominated by the National Association of Democratic Lawyers (Nadel) branches in Mthatha and Border has represented clients at the Truth and Reconciliation Commission (TRC) and was the chief evidence leader of the 2005 Pillay Commission which had investigated financial irregularities in the Eastern Cape government.
He studied at the University of the Transkei (now Walter Sisulu University) where he obtained a B Iuris (1985) and an LLB (1992). He was admitted to the Bar in 1993 and was awarded silk in 2014. In 1991 and 1992 he worked as a state advocate for the now defunct Transkei government and also served as a magistrate and prosecutor in the 1980s.
October 2019 interview:
October 2019 Interview Synopsis:
Most people would use the phrase ‘doing time’ to indicate the period they spent in jail, but Phillip Horatius Zilwa SC had something else completely in mind. Asked by the Chief Justice how long he had spent as an acting judge, he replied that his first acting stint had been in 1997, but that he had been ‘doing time every year’ since then.
He had been asked repeatedly since 1997 to make himself available to take a permanent post, but he had always felt he was not ready – until now.
Financial considerations had been among the factors that had held him back, ‘but now I feel I have to think more broadly,’ he said.
A particularly strange interaction came near the start of the interview, when the Judge President of the Eastern Cape, Selby Mbenenge, said that in his application, Zilwa had listed very few reported judgments either in his capacity as counsel or as an acting judge. Mbenenge said he had taken it on himself to do some research into the matter. He then listed a number of reported cases and asked Zilwa to confirm that he had been counsel in those matters, then added that he had found some 22 judgments delivered by Zilwa as an acting judge.
Why had Zilwa not listed these cases, I wondered – there is plenty of space to do so on the application form. And why had the JP decided to research the matter himself and present the results to the JSC?
Three issues stood out in Zilwa’s interview: questions about his background through which he indicated how he had pulled himself up from poverty; his repeated declaration of religious beliefs, and his views on how black lawyers should be empowered by government work.
Zilwa said he had been the last of nine children. His mother told him he had been an ‘accidental baby’. Both parents were ‘no longer young as he grew up’ and after matric he had to look for work to pay university fees. ‘I worked as a dishwasher and a night watchman and then as a chef.’
Did he have a message of hope for people ‘like you’? The circumstances of your family cannot shape your destiny, he said. People needed ‘God and discipline and drive’.
How had he, as a black practitioner, managed to build up such a good practice, he was asked. ‘I am a Christian’. Everything he had achieved was ‘by God’s grace.’ Thanks to God’s grace ‘from Day One I have never not had work.’
‘There is nothing special about me. It was all through God’s grace and work.’ But he had ‘another trick’ he said. When he appeared in court against a client who had chosen someone else as counsel, ‘I would hammer them (counsel for the opposition) and next time they (the client) would come running to ask for me.’
He further discussed with the JSC that government work ought to be made available to black practitioners – possibly even by making it mandatory for 70% of legal work in any field to go to black practitioners.
The JSC and Zilwa also discussed the problem that some black lawyers appeared reluctant to accept or apply for government work.
Advocate Phillip Zilwa SC was recommended for appointment.
