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·      The Judicial Conduct Committee orders Limpopo Judge President, George Phatudi, to submit himself to a reprimand by Chief Justice ·      Phatudi presided over a case involving his former client when he was attorney ·      Advocate Sekgame Tebeile had hoped for Phatudi’s impeachment

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Sizwe sama Yende

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The Judge President of the Polokwane High Court, George Phatudi, has been found to have violated the Constitution when he presided over a case involving his former client when he was an attorney.

The Judicial Conduct Committee found in a damning 23-page report that Judge Phatudi also contravened the Code of Conduct for judicial officers.

Advocate Sekgame Tebeile lodged a complaint against Phatudi in 2024 when he presided over a case involving his former client, Sello Mahlagaume Kgolane, and refused to recuse himself.

Before becoming a judge, Phatudi had represented Kgolane in a dispute over the ownership of a stand in the Sekhukhune area in Limpopo in 2013.

Then, on 6 June 2017 Kgolane brought an application in the Polokwane High Court to force the Makhuduthamaga Local Municipality in Jane Furse to comply in transferring the land in his name. Phatudi was already appointed as a judge.

He presided over the matter, and according to his testimony before Judicial Conduct Committee, “the parties were made aware that I was previously his attorney in a matter concerning the same particular erf that was the subject matter of this proposed application.”

Tebeile said in his complaint that Judge Phatudi had committed gross misconduct.

“I humbly submit that the Learned Judge committed a gross misconduct in that he proceeded to preside over a matter in which he was previously an attorney of the other party (Mr Mahlagaume Sello Kgolane: Applicant in the High Court and the respondent in the Magistrate's Court) in the court below relating to the subject matter before the High Court,” he said.

“For a fact that the Learned Judge proceeded to act as a presiding judge in a matter knowing very well that he had interest in the subject matter before the Court because he was an attorney for the other party (Applicant/Mr Kgolane), this itself constitutes a gross misconduct and which must be followed by impeachment of the Learned Judge should he be so found guilty of the gross misconduct," Tebeile added.

Judicial Conduct Committee chairperson, Judge Chris Jafta, however, did not recommend Phatudi’s impeachment. Judge Jafta’s findings were scathing and damning.

Jafta ordered that:

·      Phatudi is directed to submit a written apology to Tebeile within 10 days of the order;

·      Phatudi must submit himself to a reprimand by Chief Justice, Mandisa Maya, within 20 business days from the date of this order; and

·      Maya must issue a written warning to Phatudi, within 20 days.

Jafta said that it was apparent that Phatudi deliberately sat in the matter. “He tried to justify his conduct by saying he made procedural orders. In the circumstances the breach was not only wilful but was also grossly negligent. The respondent signed his response as the Judge President of the Limpopo Division which means he embraced the contents of his response as the leader of that Division,” he said.

“As a senior Judge, he ought to have known that the position he took in relation to procedural orders was plainly wrong in law. That position is in conflict with the principle that "a judicial officer who sits on a case in which he or she should not be sitting, because seen objectively...there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution."

Jafta said that the Constitutional Court declared in December 2010 that a judge who sits in case in which he should recuse himself violates the Constitution.

“It will be recalled that the respondent is not only a Judge but the Judge President of a Division. He is a leader of that Division whose responsibility, among others, is to ensure that Judges in his Division comply with the Code and the Act. Without the appreciation of what these instruments require, the respondent cannot discharge that responsibility and give guidance to his colleagues on ethical issues,” he said.

Attempts to get comment from Phatudi failed. Phatudi was appointed Judge-President in 2022.

His address to district magistrates in KwaZulu-Natal on judicial ethics was republished in the December 2020 edition of The Judiciary newsletter. It is an antithesis of the contravention he has been linked to.

“The concept of judicial ethics is derived historically from the common law, but in the main, involves such issues as honesty, integrity both inside and outside the courtroom, honour, dignity, independence and above all, accountability to the rule of law and the Constitution, which is the supreme law of the Republic,” he said.

Phatudi said that judicial accountability, and  independence were fundamental elements that underpinned judicial ethics for every single judicial officer.