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Judge Daniel Mafeleu Thulare

Capacity: Judge
First Appointed: January 2022
First appointed as magistrate: 1999
Additional Appointments: Chief Magistrate
Gender: Male
Ethnicity: Black
Date of Birth: 21 June 1970

Key judgments:

 

Candidate Bio:

Judge Daniel Thulare is a judge of the Western Cape High Court, Cape Town.

Formerly the Chief Magistrate of Cape Town, Thulare completed his term as the president of the Judicial Officers Association of South Africa (Joasa) in July 2019, causing a stir during his address when he was critical of the concentration of decision-making power and representation over magistracy in the judiciary.

A structure which he felt was “paternalistic” towards the magistracy. Instead, Thulare called for a symposium involving “judicial officers of all ranks” so that they could 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 side-lined and absent from heads of courts meetings convened by Chief Justice Mogoeng Mogoeng.

According to an article by Carmel 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”.

These comments did not sit easy with Mogoeng during Thulare’s unsuccessful 2019 interview for a position on the Western Cape High Court Bench when it dominated.

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, found 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 Sout 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 Juris (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.

Acting President David Mabuza appointed Thulare as a judge from January 2022.

October 2021 JSC Interview

October 2021 Interview synopsis

They say when two elephants clash, it is the grass that suffers. In the case of Chief Magistrate Daniel Thulare, the grass represents his career prospects. Thulare returns to the JSC for a third time seeking appointment as a judge in the Western Cape High Court. On the two previous occasions, in October 2019 and April 2021, both interviews ended in a fiery exchange between Thulare and the chairperson of the JSC, then Chief Justice Mogoeng. Needless to say, he was not appointed.

Understandably, there was a huge build-up to Thulare’s October 2021 interview, with many JSC-watchers eager to see how Thulare will react to Acting Chief Justice Ray Zondo’s chairing of the JSC interviews.

The interview started with the ACJ going through the usual motions, asking the candidate about his CV and experience. Curiously, Thulare started his working career as a general labourer at South Africa Breweries while he was completing his legal studies. This fact was later picked up later in the interviews by other commissioners, including Justice Minister Ronald Lamola, who asked what criminal justice interventions could be made to curb social ills such as alcoholism and the scourge of alcohol-fuelled Gender-Based Violence. Thulare explained that alcohol addiction is a psycho-social and psychiatric problem and should be treated as such, instead of being criminalised. “The criminal justice system’s response…tends to be inappropriate,” he added.

The interview finally dealt with the elephant in the room when Commissioner Dodovu asked whether Thulare had reflected on his previous interviews and what has he learnt from these. “I have learnt from that” Thulare said.

April 2021 JSC Interview

April 2021 JSC Interview Synopses

Chief Justice Mogoeng Mogoeng and Daniel Thulare, the Chief Magistrate in Cape Town and a former president of the Judicial Officers Association of South Africa (Joasa) have “previous”.

They have beef of the unholy kind going back to when Thulare, as Joasa president, had been publicly critical of the “paternalistic” power the judiciary wielded over the magistracy.

Thulare had questioned why magistrates and regional court presidents were sidelined and absent from heads of courts meetings convened by Chief Justice Mogoeng — leading to animated exchanges the previous time he had appeared before the Judicial Service Commission (JSC). Thulare was unsuccessful in that interview.

This time around Mogoeng, whose skin can appear more gossamer than the emperor’s new clothes, seemed especially put out when a voice-note starring Thulare was introduced into the interview.

The recording was of Thulare noting that Mogoeng’s term as Chief Justice was due to end (in October 2021) before suggesting that perhaps it was time for South Africa to have a female chief justice.

Describing the judiciary as “bleeding” and “rudderless”, Thulare then advanced the candidacy of Supreme Court of Appeal President Mandisa Maya who is also a member of the JSC, before breaking out into the song, Jiki Zinto (roughly translated into We Want Change).

The song had been used by the ANC faction supporting President Cyril Ramaphosa in his successful attempt to become president of the ANC in 2017.

When quizzed by various commissioners, Thulare denied that he was affiliated with what was colloquially referred to as Ramaphosa’s CR17 campaign, or that he had any interests in the internal politics of the ANC. He said he had heard the song sung by different political organisations — none of which he was a member and had adapted it to sing Maya’s praises when the issue of a successor to Mogoeng was discussed by Joasa’s leadership.

Thulare also said that the voice memo was recorded during the national executive committee virtual meeting where the matter of a successor to Mogoeng had been discussed and that it had not been made as part of a broader campaign to publicly lobby for Maya to succeed Mogoeng. Instead, the recording had been “leaked”

He was also asked, at length, to account for his previous act of perceived indiscretion regarding his remarks about the relationship between the judiciary and the magistracy and Thulare conceded that these were unfortunate since they undermined the notion of collegiality between judicial officers.

These two issues ate up a large portion of Thulare’s interview. They were probably also the main reasons why he was not recommended for appointment to the Bench.

October 2019 JSC Interview

 

October 2019 JSC Interview Synopses

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 the 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 underway, 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.