Limpopo High Court judge president George Phatudi has been ordered to apologise after he presided over a matter that involved his former clients while he was an attorney.
Phatudi, who was hauled before the Judicial Conduct Committee, was ordered to submit a written apology to advocate Shadrack Tebeile over the case that he presided over in 2017, and to submit himself to a reprimand by the chief justice.
The committee said the chief justice must also issue a written warning to Phatudi.
Phatudi appeared before the committee after he had entertained the matter, even after he had been asked to recuse himself. He instead told Tebeile that a formal application in writing would have to be lodged.
This resulted in the litigants abandoning the recusal application.
The fact that he granted orders of a procedural nature does not mitigate the seriousness of his conduct.
— Judicial Conduct Committee
Again in 2021, the judge committed further gross misconduct by presiding over another application brought in the same matter by his former client’s opponent.
Phatudi argued that it was inevitable for any judge who previously practised law to come across cases in which his or her previous client was now a party.
He said that the mere fact that one of the parties may be a previous client was not grounds for a recusal in proceedings. Pathudi had also said the judicial resources in Limpopo were limited.
He said the case would have to be postponed to allow for its recusal and that there were disputed facts which could not be resolved on the papers in that matter.
While Phatudu said he committed no misconduct, the committee was not convinced that Tebeile’s complaint was baseless and false.
It stated that a judge who continues to preside over matters in which they are disqualified conducts themselves unconstitutionally, and any order they issue is invalid.
“I am satisfied that the relevant facts sufficiently support a reasonable apprehension of bias. Consequently, the respondent should have, on his own accord, recused himself from the matter,” the committee ruled.
However, it said its findings that the code had been breached did not automatically translate into a conclusion of misconduct.
“This is despite the obligation that judges must comply with the code.”
The committee said that as a senior judge, Phatudi should have known that the position he took in relation to procedural orders was plainly wrong in law.
The committee said the violation of the code that prohibits judges from presiding over matters they were formerly involved in while practising as lawyers was deliberate and grossly negligent.
“But sight must not be lost of the fact that under the Act, a mere breach is not punishable; even a negligent one is not because these are not regarded as constituting misconduct.
“When [Phatudi] continued to sit in the relevant matter, he not only contravened the code, but he also breached his primary duty to uphold the constitution at all times when exercising judicial power.
“And his conduct constituted a violation of the constitution itself. The fact that he granted orders of a procedural nature does not mitigate the seriousness of his conduct, which has the potential to erode public confidence in the administration of justice.”
Sowetan