Capacity: Professor
Gender: Male
Ethnicity: Black
Date of Birth: July 1982
Qualifications: LLB (2007)(NWU), LLM (2011)(University of Notre Dame, USA)), LLD (2016)(UNISA)
Key Judgments:
- Rasemane v S (A557/2016) [2023] ZAGPPHC 1120 (4 October 2023)
- Mango Airlines SOC Limited and Others v Minister of Public Enterprises and Others (010700/2023) [2023] ZAGPPHC 1112; [2023] 4 All SA 475 (GP) (6 September 2023)
- Body Corporate of SS Country View v City of Johannesburg Metropolitan Municipality and Another (079326/2023) [2023] ZAGPPHC 934 (22 August 2023)
Candidate Bio (Updated September 2024)
Professor Phooko’s legal career was marked by an early interest in public interest law. Growing up in Matatiele, a small rural town in northern Eastern Cape, the importance of service delivery and state accountability became clear.
Pursuing the legal career path after obtaining his LLB from North-West University, Phooko served his articles at the Legal Resources Centre in Durban where public interest litigation was the focal point.
Phooko clerked at the Constitutional Court under Justice Zak Yacoob. Shifting his sights slightly, Phooko entered the world of academia. Here he honed his research skills, receiving various recognitions from the NRF: he is a Y2-rated researcher. He was a post-doctoral research fellow at the National University of Lesotho.
Phooko is currently a Professor at the University of Fort Hare and the UNESCO ‘Oliver Thambo’ Chair of Human Rights Director. He is also a visiting Professor at the University of Lay Adventist in Kigali, Rwanda. He has been an Associate Professor at North-West University, the University of Johannesburg and the University of Limpopo. Phooko has sat as the Acting Director of the School of Law and Head of Department at North-West. He has also served as a lecturer at UNISA. Throughout his time in academia, Phooko has served as a member of a variety of committees and bodies, remaining an active contributor to the academic community.
Professor Phooko has a long list of publications in a selection of peer-reviewed journals and has authored multiple book chapters. His work focuses on international human rights as well as public international law, constitutional law, African customary law and jurisprudence. His work covers areas such as SADC community law, public participation and comparative law.
Phooko took some of his skills in research and writing to the Public Protector’s office, working as a legal editor. He has served as an acting judge of the High Court, along with a growing number of academics who are joining the judiciary. He has served for approximately 44 weeks hearing a variety of cases.
During these stints, Phooko heard criminal law matters dealing with sexual crimes such as Rasemane v S where he found that the trail court did not err in its conviction or sentence. Phooko was tasked with deciding whether there existed substantial and compelling circumstances to justify the imposition of a lesser sentence. In describing the proportionality test, Phooko stated that:
The court is required to strike an equilibrium of the mitigating and aggravating factors and cumulatively give weight to each of the factors advanced to ascertain whether there are substantial and compelling circumstances exist.
Professor Phooko found that no such circumstances existed given the recurrence of the sexual crimes and the relationship between the appellant and the complainant – one of step-father and step-daughter. The acting judge added:
Rape has become a social cancer in South Africa. The interests of the community expect the courts to protect girl children from men who cannot control their sexual greed such as the appellant.
In Body Corporate of SS Country View v City of Johannesburg Metropolitan Municipality Phooko heard an application for urgent relief to reconnect the water supply and interdict the first respondent from disconnecting the water supply to the sectional title scheme of the applicant. Phooko considered first the issue of urgency, stating that the disconnection of water supply would have dire consequences if not heard on an urgent basis. The disconnection occurred without prior notice, and was thus beyond the ambit of the law. Phooko granted the relief sought.
The JSC is often hesitant to nominate candidates without extensive experience acting in the court. Many candidates before have come up against the perennial issue of experience. Professor Phooko represents an interesting consideration, as his research experience and knowledge as it pertains to the law is manifest in his academic career. However, whether this will translate into confidence on the part of the JSC that Phooko is ready for permanent appointment will be curious to observe come the interviews.
October 2024 Interview:
October 2024 Interview Synopsis:
In what started as a promising interview ended with Deputy President Zondi advising Prof Phooko that it is best to delete his social media before returning.
The interview started well with Maya listing his several academic qualifications. She went through his CV which started his legal career by doing his article at the LRC in Durban and he then clerked at the Constitutional Court for Justice Yacoob who he has kept a good relationship with. In his 44 weeks of acting at the Gauteng High Courts he wrote 46 judgements, two of which are reported with one upheld and one overturned by the SCA.
The interview started to take a turn when Judge President Mlambo raised two issues he wanted ventilated by Phooko. One of these was litigation which occurred between Phooko and the University of Johannesburg, his previous employer. The matter was resolved amongst the parties in 2022 but later went to court in 2023 in relation to a claim that he had made injurious falsehoods on social media. JP Mlambo’s concern lay with the fact that Phooko had already acted at the court in 2023 and when the order was made Phooko did not directly make him aware or discuss it with him. Phooko said “it must have fallen through the cracks”. JP Mlambo impressed upon him the seriousness that these type of controversies have when you become a Judge.
With Phooko sitting as a member of the Electoral Court, Judge President Tlaletsi asked him if he had disclosed the litigation with the head of that court? Phooko responded saying he hadn’t and that it was an oversight on his behalf.
The second issue of concern raised by JP Mlambo was a letter from the University of Limpopo that he received concerning allegations against Phooko. Phooko responded saying that the comments made against his character were baseless and explained the circumstances surrounding his appointment to the University of Limpopo.
Commissioner Ngcukaitobi raised two main objection relating to both issues raised by JP Mlambo. The first was from UJ where there was an application brought against him from disseminating injurious falsehoods to which he admitted. Phooko said that these statements concerned his personal experience as a black academic and provided a short summary of what had happened. Another complaint was from the University of Limpopo that he had left them in the lurch when he departed from the university by not attending meetings and classes. What Adv Ngcukaitobi SC was worried about was the fact that they raised that he has a propensity for slandering people on social media and that he is involved in commercial interests while he was holding a position in the electoral court.
Adv Pillay followed up on this line of questioning, her concern lying in the fact that there were several material non-disclosures made by him in his application. He had not correctly disclosed his business ventures and his settlement agreement with UJ that was made a court order in his application to the JSC, both of which failing to answer specific questions which relate to them.
Both Deputy President Zondi and Minister Simelane warned him against the use of social media, with DP Zondi saying that it is best to stay away from it as it does not give you an appropriate opportunity to reflect before reacting.
Prof Phooko’s interview concluded with him noting that he had considered all the advice received from the commissioners which he has taken on board, following this he is “going back to do the homework. […] I withdraw my candidature.”
