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Judge Legodi Phatudi

Judge Phatudi - JSC interviews - October 2019

Profile

Current position: Judge at the North Gauteng Division of the High Court

Date appointed: 2009

Candidate bio:

As a North Gauteng High Court judge sitting in Pretoria, Phatudi has had both interesting cases linked to issues within the legal fraternity, and experienced rather odd things in matters he was adjudicating.

In 2013 Phatudi was hearing a multi-million rand civil matter in which high-profile advocate Jaap Cilliers was involved. In a strange twist, Cilliers, whose clients include The Waterkloof Four and Dr Wouter Basson— head of the apartheid government’s chemical and biological warfare project — was injected in the buttocks with an unknown substance outside court, causing him to be admitted to hospital.

On more prosaic matters, Phatudi heard an application brought by Sandton advocate Roshnee Mansingh for the courts to confirm that the South African president had no power, in terms of the Constitution, to confer silk, or senior counsel status on advocates — a practice, derived from England, that has proved lucrative for advocates with the “SC” affixed to their titles, but which has been decried as elitist by critics.

He found in favour of Mansingh, stating that the drafters of the Constitution did not codify the practice in the country’s founding document, or give the power to confer silk to the president. The intention, ruled Phatudi, was of “having a break with the past” and an attempt to avoid “adopting concepts into the Constitution which are not based on the will of the people of South Africa.”

The judgment was overturned by both the Supreme Court of Appeal and the Constitutional Court.

During Phatudi’s unsuccessful 2016 interview for Limpopo Deputy Judge President, he was criticised for his allegedly poor judgment writing skills and apparent disregard for what happened to his judgments when they were appealed to higher courts (see 2016 Interview). In 2015 he unsuccessfully interviewed for the position of judge president of the Limpopo Division of the High Court. He has acted as the deputy judge president in Limpopo from July-November 2017.

Phatudi obtained a B.Juris and LLB from the University of Limpopo. As an attorney he founded his own practice in 1996 which he ran until becoming a judge in 2009.

Phatudi is another candidate who unsuccessfully interviewed to head the Limpopo division in April 2015.

 
October 2019 JSC Interview
 

 
October 2019 JSC Interview Synopsis
 
When the Chief Justice asks a judge if they have a personal difference with the Judge President in their division, all is not going well with that interview. Judge Legodi Phatudi was interviewed by the JSC for a position as the Deputy Judge President in the High Court in Limpopo. It is a small court, and the divisions between Judge Phatudi and Judge President Makgoba are clearly a significant problem.

The division has many challenges, including not having enough space for the files that are piling up in this relatively new court. A moving filing system is one of the innovations Judge Phatudi would suggest in order to make the court more efficient, as well as moving staff from the court into containers. He also proposes harmonizing one set of practice directives between Pholokwane and Thoyandou.

However, the allegations made by Judge Phatudi about his Judge President are far more serious that that. He suggested that the Judge President has told practitioners in the division to ignore a decision of his, and suggested that this is a breach of section 165 of the constitution which includes the provision that an order or decision issued by a court binds all persons to whom
it applies.

The Judge President suggested that, for his part, that Judge Phatudi is one of a number of judges in the division who arrive late for court, and leave early. This concerned the Chief Justice, who asked Judge Phatudi why he had not raised concerns about this with the judicial leadership. The Judge President also insinuated that Judge Phatudi has a large number of criminal matters which have not been finalised. Phatudi responded by saying that the NPA in the division was enrolling matters for trial that were not trial ready and therefore didn’t run.

The two combatants were giving no quarter, and exchanging more or less equal blows, until Adv Thabani Masuku asked about a decision handed down by Judge Phatudi dealing with a sexual assault case involving a minor. The mood in the room shifted to a concentrated silence as he outlined the facts, indicating that Judge Phatudi had reduced the sentence from 15 years to 2 years, which meant that the perpetrator left the court room as he has already served that time awaiting and during trial. Phatudi suggested in the judgement that “it is a misdirection on the part of the magistrate to over emphasise the prevalence of the offence way above the appellants personal circumstances and the interests of society.”

President Maya then weighed in, pointing out that the reference to a Supreme Court of Appeal decision as precedent for reducing the sentence was incorrect. The judge apologised for his misreading.

 
April 2016 JSC Interview

April 2016 Interview Synopsis

Phatudi was skewered by Advocate Mike Hellens SC about his poor judgment writing skills and apparent disregard for what happened those rulings appealed to higher courts – deficiencies which the commissioner observed should disqualify him for the deputy judge president position.

Hellens’ carefully constructed series of questions was an excellent example of cross-examination technique.

Representing the  advocates profession at the commission, Hellens started by asking Phatudi whether it was the function of a division’s judge president and deputy judge president to oversee judgments to ensure “standards are kept”.

Phatudi responded that judges must be independent. Hellens qualified that his question pivoted on “monitoring the quality of work” and “keeping an eye on the structure of judgments and delays” rather than anything prescriptive. He then raised one of Phatudi’s judgments which had been overturned by the Supreme Court of Appeal, a decision which the judge said, he was “not aware” of.

Hellens honed in on an apparent lack of diligence by Phatudi, for not following his judgments, or learning from an appellate court ruling which was “somewhat harsh and strident” in its criticisms which included “a paucity of reasoning on damages” which included “almost, a figure plucked from the air”.

“There are a number of issues, here,” said Hellens, circling his prey: “That you don’t read the Law Report… You don’t monitor judgments on appeal… As a DJP aspirant, you don’t have the qualities to oversee, in the most neutral sense of the word, other judgments.”

Phatudi was left bludgeoned like Rocky Balboa after a losing boxing bout.