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Judge Gerrit Muller

Judge Muller - JSC interviews - October 2019

Profile

Current position: Judge at the Limpopo Division of the High Court

Date appointed: 2016

Candidate bio:

Muller was appointed to the Limpopo Division of the High Court in 2016 and a year later he heard a case that left the country cold for its exposing of the bankrupted failures of post-apartheid South Africa: the death of five year-old Michael Komape who drowned after falling into the pit latrine at his rural school.

The Komape family claimed damages under various headings, several of which were conceded by the defendant. The remaining issues to be determined were the quantum of Claim A, a delictual claim for damages; the whole of Claim B, a claim for damages for grief suffered by the immediate family members, alternatively, constitutional damages; and in respect of Claim C, the necessity and number of sessions of psychological treatment required for future medical expenses, especially in respect of the minor children.

Muller held that in “Claim B, grief is claimed as a substantive and different cause of action from bereavement, emotional shock and trauma suffered. There is, in my opinion, neither reason in law nor any policy consideration to draw a distinction between grief and any other psychiatric injury or harm. A claim for grief, if proved to have resulted in a detectable or recognised psychiatric injury … will sound in damages, as any other injury. A claim for grief, which caused no recognisable injury cannot be justified, as a psychiatric injury or on any policy considerations. It will no doubt lead to bogus and an unwarranted proliferation of claims for psychiatric injuries and pave the way for limitless claims for every conceivable cause of grief whether insignificant without expert psychiatric evidence”.

He found there was insufficient expert evidence to prove the Komape family members suffered from grief as a recognisable psychiatric illness, but that the evidence “established grief as a process similar to bereavement and mourning, which is not a recognisable psychiatric injury or illness.”

Muller therefore held there was “no basis upon which the common law can or should be developed. Policy considerations militate against compensation for emotional suffering short of a recognisable psychiatric illness. Damages cannot be awarded for grief without the resultant recognisable psychiatric lesion or illness which is a requirement for claim A and B to succeed. Grieve [sic]… must be proved by expert psychiatric evidence.”

Muller made an award in favour of the minor children for future medical treatment under Claim C. Turning to the alternative claim for constitutional damages, Muller held that the evidence established violations of the rights to equality, dignity, life, a non-harmful environment, the best interests of children and to education. He found that constitutional damages was “nothing short of a claim for punitive damages”, and that an appropriate remedy would be “an order directed at the enforcement, protection and the prevention of future encroachment of the rights protected in the Bill of Rights if the harm suffered is not adequately addressed by an effective common law claim”.

Muller held that punitive damages were not appropriate relief, as they would result in the Komape family being “over compensated”, and would also “not serve the interests of society.” He went on to note that a declaratory order would not sufficiently vindicate the rights of learners attending rural schools in the province.

Muller concluded that a structural interdict was “the only appropriate remedy that is just and equitable which will effectively vindicate the Constitution”. He ordered the education department to supply and install sufficient toilets “at each rural school currently equipped with pit latrines in the Province of Limpopo” and that it report back to the court on its progress.

The ruling drew criticism from advocacy group Section 27 for failing “to distinguish between the multiple levels of human rights violations … in respect of Michael himself, members of the Komape family as a result of his death and the ongoing violations of Limpopo learners”, and that “[t]he Court further failed to recognise that the structural relief as a prospective remedy for the Limpopo learners and a remedy recognising the constitutional violations of the family, need not be mutually exclusive.”

Muller holds an LLB and an LLD in international law. He completed an LLD in private law at the University of Pretoria in 2018. He has worked as a state advocate, an additional magistrate and joined the Bar in 1991, being conferred silk in 2009.

As an advocate he argued five reported cases at the Supreme Court of Appeal and a further five at the Constitutional Court, including one involving Frank Nabolisa, the drug dealer convicted of trafficking cocaine with Sheryl Cwele, the former wife of intelligence minister, Siyabonga Cwele.

He has published four papers, including “Unfair Labour Practise and Dismissal” and “The Liability of Banks as Moneylenders for Damages to the Environment”. He has acted in the North Gauteng High Court in various stints between 2010 and 2014.

 
October 2019 JSC Interview:
 

 
October 2019 Interview Synopsis:
 
It would be hard to imagine a more devastating own-goal than that scored by Judge Gerrit Muller during his interview for the post of deputy judge president of Limpopo.

He was asked the question that all candidates appearing before the JSC can be absolutely certain they will have to answer: if you were to be appointed, how would your appointment advance transformation of the bench?

His answer: ‘I did not give transformation so much thought really.’

And earlier, to a similar question, worded slightly differently, he said, ‘I am here for myself. If I don’t fit into the transformation process, there is nothing I can do about it.’

After those answers, neither his two LLM degrees nor his two doctorates in law, could help his cause. But it got worse.

If appointed, he would be replacing a black woman. So how would his appointment improve transformation, he was asked again. If he were appointed, he said, ‘I am just a judge’. Given what a judge does ‘colour doesn’t matter at all.’

‘The mere fact that (his predecessor had been a black judge) doesn’t change that.’ But the building blocks of the country were ‘about colour and racism’, said a commissioner. ‘So how can you say that colour doesn’t matter?’

All judges had to do was apply the law, he replied.

It was the kind of interview one might have winced at in the first few years of the new dispensation, but so many years after the JSC was established and made its transformation mandate clear, it was simply incomprehensible that a judge could appear at the commission and give such answers.

Most judges, used to arguing even hopeless cases in their former life as legal practitioners, should be able to advance some grounds for what they could contribute to transformation. Perhaps they had contributed to the ‘transfer of skills’ while at the Bar; perhaps they had had black pupils or had made a point of sharing work with black colleagues. Perhaps, since appointment to the bench, they had become involved in a scheme to identify talented black practitioners or law students and mentor them. Even a white male judge should be able to show that in some way he has tried to help transform the bench from the gender and colour exclusiveness of the past.

But to say that one has not given transformation ‘much thought’ suggests that one is living in another country. As EFF leader Julius Malema, put it, ‘transformation ought to be part of your DNA’.

And not just transformation of the colour and gender of the bench either. Commissioners put it to him that transformation also impacts on a court’s jurisprudence – a swipe at the judge’s decision in the case of a five year old boy who drowned when he fell into a pit lavatory at his school. The decision has been much criticised as a legally inadequate response to the complex human rights violations implicit in the child’s horrific death.

In the dying moments of what became, for everyone involved, a distressing interview, the judge was asked what he would want to fix first were he to get the job. Turned out that Judge Muller had his eye on the backlog of outstanding criminal cases – and the water crisis in the court building.

 
April 2016 JSC Interview

 

April 2016 Interview Synopsis

Muller was quizzed on his professional history – both while acting as a high court judge, and while working as a silk. He has argued five reported cases at the Supreme Court of Appeal and a further five at the Constitutional Court, including one involving Frank Nabolisa, the drug dealer convicted of trafficking cocaine with Sheryl Cwele, the former wife of intelligence minister, Siyabonga Cwele.

On his commitment to transformation, Muller said that he used black juniors regularly, including in matters which he had argued at the Constitutional Court. He said his appointment to the Limpopo high court — as a white male — would ensure representivity on that Bench.