Limpopo Judge President George Phatudi has been found to have acted in breach of the judicial conduct code as he presided over a case which involved one of his former clients at the time when he was still a lawyer.

The Judicial Conduct Committee, presided over by retired Constitutional Court Judge Chris Jafta, said Judge Phatudi must subject himself to a reprimand by Chief Justice Mandisa Maya, during which she must issue him with a written warning.

Judge Phatudi must also issue a written apology to advocate Shadrack Thebeile, the complainant in the matter. Thebeile lodged a complaint against the judge following two cases in which he acted for the Makhuduthamaga Municipality as respondent in a land dispute matter, concerning an applicant who was a client of Judge Phatudi when the latter was an attorney.

The subject matter before Judge Phatudi concerned the same facts as those in which the judge earlier acted as an attorney for the applicant. Thebeile said that under these circumstances Judge Phatudi should have recused himself from hearing the matter.

He said he asked for the judge to recuse himself, but Judge Phatudi said Thebeile had to bring a formal application and that his (Thebeile’s) client will have to foot the legal bill. Thebeile said his client, under these circumstances, decided not to go ahead with the formal recusal application.

He, however, in his complaint to the tribunal, said the judge should have recused himself in any event under these circumstances. Judge Phatudi, meanwhile, in his submissions, denied any wrongdoing by presiding over a matter involving his former client. He explained that his only involvement in the matter was of a procedural nature and he did not entertain the merits of the matter.

He also said it is inevitable for any judge who had previously practised law to come across cases in which his or her former clients are now a party. Judge Phatudi also said that the resources in his division are limited and that it is not in the interest of justice for a judge to recuse himself for flimsy reasons.

He said that the complaint against him was baseless.

Judge Jafta examined the code of judicial conduct in dealing with the complaint and said the code is clear that judges are prohibited from sitting in matters as a judge in which they were previously involved before their appointments as a judge.

The rule also extends to situations where the judge’s former firm was involved in, even if the judge concerned was not. Judge Jafta said where there is a reasonable apprehension of bias, a judge must recuse himself, which Judge Phatudi should have done in this case.

He said the violation of the code was deliberate and grossly negligent. It was also found that he had contravened his duty as a judge under the Constitution. The fact that he only issued procedural orders does not mitigate the seriousness of his conduct, Judge Jafta said.

“It is concerning that the respondent (Judge Phatudi) appears to have no grasp of what the Code requires under the circumstances. It will be recalled that the respondent is not only a judge but the Judge President of a Division”. 

Judge Jafta added that as the head of a division, his responsibility includes ensuring that the judges under him adhere to the Code of Conduct. He also questioned how Judge Phatudi could guide his colleagues on ethical issues if he does not appreciate what the code requires.

zelda.venter@inl.co.za

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