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Judge A M L (Legodi) Phatudi

Judge Phatudi - JSC interviews - October 2019

Capacity: Judge
Further appointments: N/A
First appointed as a judge: 01-02-2009

Key judgments: N/A

Gender: Male
Ethnicity: African

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
Third applicant for the position of Limpopo’s deputy judge president, Judge Legodi Phatudi, might have been tipped beforehand as a certainty for the position. He has, after all, been a judge for almost 10 years, much of it in the Gauteng High Court. And, crucially, he had been acting DJP at the Limpopo High Court for five months in 2017.

As one of the most senior members of the Limpopo bench it should have been an easy walk to promotion. But the interview seemed to take place under a shadow that no-one could quite name. Commissioners asked about the relationship between Judge Phatudi and the Judge President, Ephraim Makgoba. Even Chief Justice Mogoeng Moegeng felt moved to intervene at some point when the dialogue between the two seemed to become quite pointed, to ask whether there were personal differences between them.

Judge Phatudi said he had no clue what was going on – nor did anyone else watching the interviews. There was some discussion about whether the judge was keeping up with his work, but it quickly emerged that the central issue for the commissioners, and apparently for the JP, was the discipline of the judges at the Thohoyandou court where Judge Phatudi was based.

The JP said when he visited that court he found judges arrived extremely late some mornings and left soon after lunch. What did Judge Phatudi know about this and what action had he taken?

The former ADJP first exonerated himself, saying he had only come late once. This had been because of car trouble. He had called ahead on that occasion to explain he would be delayed but had been just five minutes late. He also said that he sometimes started court earlier than the stipulated time. He would have been hearing a matter at the time that his colleagues arrived, late or on time, and thus could not say whether they were typically late or not.

Pushed by the commissioners, he said that he had noticed certain judges regularly left early. Some commissioners suggested to him that he ought to have done something about the late-comers and those who left early, and they asked why he had not reported them. The suggestion of course was that in not taking action, he showed himself lacking the leadership skills and temperament required for the job he wanted.

He was briefly offered what might have been a way out of the difficulty. One commissioner asked whether relations between judges were not based on deep trust for one another, and it seemed it might be a chance for him to say that he had not reported those who came late because it would have breached the trust between members of the bench. But he did not grasp that straw and continued to say he had not known about late-coming. This led EFF leader Julius Malema, one of the JSC commissioners, to say he did not know how Judge Phatudi could claim ignorance of the problem when the whole of the JSC had heard about it.

As with the two candidates before him, this interview left observers with a sense that Judge Phatudi had not prepared properly. Reports about ill-discipline at Thohoyandou were an open secret. As he was applying for a leadership position in that division, there was no way the issue would not have emerged as a key issue in his interview. Yet he seemed taken aback and at a loss each time the issued was probed.

Judge Legodi Phatudi was not recommended for appointment.

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.