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:
- S v Madhinha 2019 (1) SACR 297 (WCC)
- Hans v District Court Magistrate, Cape Town 2020 (2) SACR 362 (WCC)
- City of Cape Town v Balus (21616/19) [2020] ZAWCHC 22 (17 March 2020)
- Khumalo v Minister of Police and Another (17132/15) [2020] ZAWCHC 77 (29 July 2020)
- Mukuru Financial Services (Pty) Ltd v Department of Employment and Labour (2022) 43 ILJ 1171 (WCC)
Candidate Biography (updated August 2024):
Judge Daniel Thulare is a judge of the Western Cape High Court, Cape Town.
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. He 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.
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 Judge Daniel Thulare 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.
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 Dolamo the accused applied for the deemed conviction and sentence to be set aside.
Judge Daniel 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 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.
In 2023, the legislature did, through amendments by the addition of section 57B and section 57C, inserted through section 10 of the Judicial Matters Amendment Act 15 of 2023, make provision for certain admissions of guilt not to be entered into the criminal record book of admissions for guilt, and further for the expunging of such convictions as criminal records where they were recorded.
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. Judge Daniel 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”.
In the matter of Mukuru Financial Services (Pty) Ltd v Department of Employment and Labour, the applicant companies had applied to the respondent state department for a corporate visa under the provisions of section 21 of the Immigration Act 13 of 2002 to enable them to employ foreigners. They alleged that despite a diligent search, they were unable to find suitably qualified employees fluent in the indigenous languages of Zimbabwe, Malawi, and other relevant languages. The department rejected the applications on the basis that the skills required were available in the country and that the foreign language requirements was discriminatory to local citizens. The applicant thus applied to the High Court for the review of the decision.
Thulare agreed with the department’s decision, stating that although the companies had a need to have persons who spoke foreign languages, where the companies sought to employ foreigners on the basis of race, ethnic or social origin, culture, language, or birth, they had to establish that their discrimination against South African citizens was fair by ensuring that their employment of foreigners did not adversely impact the rights and expectations of South African workers, by amongst others, showing that they had attempted to train South African employees to meet their labour needs. In light of the fact that the companies did not have strategies and programmes to train South African citizens as envisaged by the Immigration Act, Thulare held that they had unfairly excluded South African citizens from employment opportunities in favour of foreigners, which amounted to unfair discrimination on the ground of language, and as such was prohibited by section 6 of the Employment Equity Act 55 of 1998.
October 2024 Interview:
October 2024 Interview Synopsis: Western Cape Division of the High Court (Judge President)
Chief Justice Maya started Judge Thulare’s interview going through his CV and pointing out the various activities that he has participated in throughout his career. One of these being his activism and variety of things he has done inside and outside of the court including being the Bishop of a church.
Setting out his vision for the Western Cape High Court, he started by explaining that he brings the wisdom of his ancestors to the court which includes wisdom in leadership. This ancestral wisdom is what informs his own understanding of leadership explained Thulare. The rest of his vision focused on the collegiality of the division in terms of etiquette and communication of judges, improving the allocation of judges so that all judges can have a variety of experience and expertise, availing himself to assist on aspirant training courses and immediately get the ball rolling in relation to the digitization project.
Most questions or statements made by commissioners towards Thulare came across positively towards him and allowed him to breeze through. However, Commissioner Notyesi and Malema were concerned with the fact that he had only been at the High Court for two years. They were of the opinion that it may be too soon for him to be appointed to a leadership position. To this he explained that the two years of experience would not compromise the job he would do because in leadership when you are humble you should use the strengths of your judicial officers and you need the experience of how to manage these.
Commissioner Gotsell was another that had specific concerns he wanted addressed by Thulare. After setting out that Thulare had 80 Magistrates Courts reporting to him when he was the Chief Magistrate from 2016 to 2022, Gotsell asked him several questions in relation to a review judgment he had handed down. Firstly, he asked what his broad and general statement that “magistrates in cape town have become recruiting agents for gang culture on the Cape Flats based on the fact that in his opinion they do this by incarcerating accused persons rather than granting bail” said about his leadership of the Magistracy? Thulare responded by saying that this was a concern that consistently raised.
Following from this, Gotsell pointed out the language he used to describe the Magistrates as having a ‘bad attitude’ and there was a ‘dereliction of duty’ on their behalf. After describing collegiality to relate to etiquette and communication in his vision, Gotsell questioned if these comments are the actual collegiality that he refers to? Thulare explained that collegiality includes that when things aren’t right you should point them out.
Ultimately, Judge Thulare was unsuccessful in his attempt.
October 2021 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.
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.
Thulare’s interview was successful, and he was appointed in January 2022.
April 2021 JSC Interview:
April 2021 JSC Interview Synopsis:
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” 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.
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.
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 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 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 (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.
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 an 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.
