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Phineas Mojapelo

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Phineas Mojapelo
Deputy Judge President of the Gauteng High Court
In office
1 January 2005 – 14 June 2020
Appointed byThabo Mbeki
PresidentBernard Ngoepe
Dunstan Mlambo
DivisionNorth Gauteng
Succeeded byRoland Sutherland
Judge of the High Court
In office
27 January 2003 – 14 June 2020
Appointed byThabo Mbeki
DivisionGauteng
Personal details
Born
Phineas Mathale Deon Mojapelo

(1951-06-11) 11 June 1951 (age 73)
Polokwane, Transvaal
Union of South Africa
Alma materUniversity of the North

Phineas Mathale Deon Mojapelo (born 11 June 1951) is a South African retired judge of the High Court of South Africa. He was the Deputy Judge President of the South Gauteng Division from January 2005 to June 2020, and he joined the bench in January 2003 as a puisne judge of the North Gauteng Division. He was also an acting judge in the Constitutional Court of South Africa in 2017.

Born in Polokwane, Limpopo, Mojapelo began his legal career as an attorney in Nelspruit, Mpumalanga, where he ran a prominent law firm with Mathews Phosa and Ephraim Makgoba. He was national president of the Black Lawyers Association from 1991 to 1995, and he is also a former member of the Judicial Service Commission and South African Law Reform Commission.

Early life and education

Mojapelo was born on 11 June 1951 in Polokwane in the former Northern Transvaal.[1] His mother was a teacher and he grew up in a large household with his maternal family.[2] He matriculated at Tshebela High School on the rural outskirts of Polokwane and studied law at the University of the North, where he completed a BProc and an LLB.[1] His university class also included Monica Leeuw, Cyril Ramaphosa, and Mathews Phosa, and his time in Turfloop coincided with the height of the Black Consciousness Movement; he was a member of the South African Students' Organisation.[2]

After his graduation, Mojapelo remained at the University of the North for a year as a lecturer in private law and African customary law.[2] Thereafter, from January 1978 to December 1979, he completed his articles of clerkship at Webber Wentzel, a prominent White firm then based at the Standard Bank Centre in Johannesburg.[1] Although Mojapelo had been a vacation clerk at the firm as an undergraduate, he was only the second or third Black student to become an articled clerk there.[2]

In January 1980, Mojapelo was admitted as an attorney of the Supreme Court of South Africa.[1] He moved to Nelspruit in the Eastern Transvaal, where he opened a law firm with Mathews Phosa (his former classmate) and Ephraim Makgoba (a former student). Theirs was the first ever Black-run law firm in the region.[2] Mojapelo later said that most of the firm's early cases were "cases involving friction between the races, whether in the commercial sphere or in the criminal sphere"; their clients included trade union formations and Enos Mabuza, the Chief Minister of the nearby bantustan of KaNgwane.[2]

Mojapelo also joined the Black Lawyers Association in 1980 and served as its secretary from 1985 to 1991 and then as its national president from 1991 to 1995.[1] In the public sphere, he was a member of the Judicial Service Commission from 1994 to 2002, a member of the South African Law Reform Commission from 1996 to 2001, and an acting judge in the Pretoria High Court in 1999 and 2001.[1]

Gauteng High Court: 2003–2020

In November 2002, President Thabo Mbeki announced that, on the advice of the Judicial Service Commission, Mojapelo would join the bench permanently as a judge of the Transvaal Provincial Division (later the North Gauteng Division) of the High Court of South Africa. He took office on 27 January 2003.[3]

Less than two years later, President Mbeki announced that Mojapelo would be transferred to the High Court's Witwatersrand Local Division (South Gauteng Division), where he would become Deputy Judge President of the division.[4] He took office on 1 January 2005.[1]

Thereafter he served in the High Court until his retirement in June 2020. During his tenure, he was an acting judge in the Constitutional Court in early 2017, and he was an acting judge in the Supreme Court of Appeal from December 2019 to March 2020.[1]

Notable judgments

During his second year on the bench, in Christian Lawyers' Association v Minister of Health,[5] Mojapelo dismissed a challenge to the constitutionality of the Choice on Termination of Pregnancy Act, 1996, finding that the Constitution licensed its provision for girls under the age of 18 to have abortions without parental consent.[6] In May 2016, Mojapelo certified South Africa's largest-ever class action suit,[7][8] brought by mineworkers in Nkala v Harmony Gold;[9] and in February 2017, in Democratic Alliance v Minister of International Relations and Cooperation, he blocked the state's attempt to withdraw from the Rome Statute.[10][11]

In 2019, sitting in the Equality Court, Mojapelo presided in Nelson Mandela Foundation Trust v Afriforum,[12] in which he found that gratuitous displays of the apartheid-era South African flag amounted to hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.[13][14] The ruling was politically sensitive and developed judicial precedent insofar as it found that the Equality Act's definition of hate speech extended to gestures, as well as words.[15][16] His judgment was largely upheld by the Supreme Court of Appeal in 2023.[17]

Other politically sensitive matters heard by Mojapelo included several involving prominent political figures. In 2008, he led a full bench in adjudicating Western Cape Judge President John Hlophe's lawsuit against the Constitutional Court and its justices,[18][19] and in 2014, he set aside Zwelinzima Vavi's suspension as the general secretary of the Congress of South African Trade Unions.[20] He was also scheduled to preside in the rape trial of former Deputy President Jacob Zuma, but he did not avail himself for personal reasons, with media reporting that he had known Zuma personally during apartheid.[21][22]

Nomination to judge presidency

In early 2012, as Bernard Ngoepe approached retirement, Mojapelo emerged as a frontrunner to succeed Ngoepe as Judge President of the Gauteng Division. His primary competitor was perceived to be Dunstan Mlambo; according to the Mail & Guardian, Mojapelo's candidacy was supported by the National Association of Democratic Lawyers but opposed by elements of the Black Lawyers' Association which viewed him as a participant in "the liberal agenda of fighting the ANC-led government through the courts".[23] Hwever, the Black Lawyers' Association ultimately endorsed Mojapelo too.[24]

In March 2012, the Judicial Service Commission announced Mojapelo, Mlambo, and Francis Legodi as the three shortlisted candidates for the judge presidency,[25] and they were interviewed in Cape Town the following month. Mojapelo's lengthy interview was consumed with unfriendly questioning about an op-ed he had published the previous year. In the op-ed, published in the Sunday Times, Mojapelo argued that the Judicial Service Commission had departed from proper procedure in appointing Sandile Ngcobo as Chief Justice of South Africa in 2009.[26][27] During the interview, he was pressed on his argument by panellists Nomvula Mokonyane and, especially, Jeff Radebe, then the Minister of Justice.[28][29] In the aftermath, the Judicial Service Commission announced Mlambo as its preferred candidate for the judge presidency.[30] The Mail & Guardian said that the decision, while unsurprising, was "likely to send ripples through the legal fraternity".[31]

Retirement

In March 2021, Mojapelo wrote on behalf of the Judicial Conduct Committee of the Judicial Service Commission in adjudicating a series of complaints against Chief Justice Mogoeng Mogoeng. Mogoeng was ordered to retract and apologise for certain controversial remarks he had made about South African policy toward the state of Israel.[32] In an appeal, Mogoeng said that Mojapelo's "reasoning is flawed and disturbingly superficial".[33]

In May 2023, President Cyril Ramaphosa (another of Mojapelo's contemporaries at university) appointed Mojapelo to chair an independent panel tasked with investigating the Lady R incident. The other members of the panel were Enver Surty and Advocate Leah Gcabashe.[34][35] The Democratic Alliance later challenged Mojapelo's appointment to the panel, arguing that it undermined judicial independence.[36]

Personal life

Mojapelo is married to Setlola Phoshoko-Mojapelo[1] and was formerly married to Mamokete Bellinah Mojapelo (née Koopa).[37] He has four children.[1]

References

  1. ^ a b c d e f g h i j "Mojapelo, Phineas Mathale Deon". Supreme Court of Appeal. Retrieved 20 January 2024.
  2. ^ a b c d e f Sisilana, Lwandile (December 2019). "The Interview: Deputy Judge President Phineas Mojapelo Talks to Advocate" (PDF). Advocate. 32 (3): 48–57.
  3. ^ "Mbeki appoints new judges". News24. 4 November 2002. Retrieved 20 January 2024.
  4. ^ "Mbeki announces 7 new judges". News24. 4 November 2004. Retrieved 20 January 2024.
  5. ^ Christian Lawyers' Association v Minister of Health 2004 (10) BCLR 1086 (T).
  6. ^ "Court rules girls can abort without parental consent". The Mail & Guardian. 28 May 2004. Retrieved 20 January 2024.
  7. ^ "Landmark silicosis ruling allows class action against gold firms". The Mail & Guardian. 13 May 2016. Retrieved 20 January 2024.
  8. ^ Preez, Eugenie du (22 May 2016). "Silicosis: Clarity on Q(h)ubeka Trust payouts". Business. Retrieved 20 January 2024.
  9. ^ Nkala and Others v Harmony Gold Mining Company Limited and Others [2016] ZAGPJHC 97.
  10. ^ "ICC withdrawal 'unconstitutional and invalid', high court rules". The Mail & Guardian. 22 February 2017. Retrieved 20 January 2024.
  11. ^ "South African court blocks government's ICC withdrawal bid". The Independent. 22 February 2017. Retrieved 20 January 2024.
  12. ^ Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others [2019] ZAEQC 2.
  13. ^ "Flag case will set precedent". The Mail & Guardian. 3 May 2019. Retrieved 20 January 2024.
  14. ^ "Apartheid flag is an assault on the dignity of black people, high court hears". The Mail & Guardian. 30 April 2019. Retrieved 20 January 2024.
  15. ^ "Equality court: Flying old SA flag is hate speech". The Mail & Guardian. 22 August 2019. Retrieved 20 January 2024.
  16. ^ "South African court restricts displays of apartheid-era flag". AP News. 21 August 2019. Retrieved 20 January 2024.
  17. ^ Afriforum NPC v Nelson Mandela Foundation Trust and Others [2023] ZASCA 58.
  18. ^ "Hlophe: Court reserves judgment". News24. 14 November 2008. Retrieved 20 January 2024.
  19. ^ Hlophe v Constitutional Court of South Africa and Others [2008] ZAGPHC 289.
  20. ^ "Zwelinzima Vavi suspension set aside". News24. 4 April 2014. Retrieved 20 January 2024.
  21. ^ "Fourth time lucky: Zuma gets his judge". The Mail & Guardian. 2 March 2006. Retrieved 20 January 2024.
  22. ^ Basson, Adriaan (13 February 2006). "Zuma's new judge no stranger". News24. Retrieved 20 January 2024.
  23. ^ "Politics enters Gauteng judicial race". The Mail & Guardian. 13 January 2012. Retrieved 20 January 2024.
  24. ^ "Interrogating the judges". The Mail & Guardian. 13 April 2012. Retrieved 20 January 2024.
  25. ^ "JSC battles to fill ConCourt vacancy". News24. 8 March 2012. Retrieved 20 January 2024.
  26. ^ "Are judges' appointments campaign fodder?". The Mail & Guardian. 11 June 2011. Retrieved 20 January 2024.
  27. ^ "Extension of term of chief justice could create judicial crisis". The Mail & Guardian. 27 May 2011. Retrieved 20 January 2024.
  28. ^ "Politicians grill 'outspoken' judges". The Mail & Guardian. 20 April 2012. Retrieved 20 January 2024.
  29. ^ "Mojapelo stands up to JSC". Sunday Times. 20 April 2012. Retrieved 20 January 2024.
  30. ^ "Commission wants Mlambo appointed to head North and South Gauteng High Courts". News24. 24 April 2012. Retrieved 20 January 2024.
  31. ^ "Is the JSC courting favourites?". The Mail & Guardian. 26 April 2012. Retrieved 20 January 2024.
  32. ^ Seleka, Ntwaagae (4 March 2021). "Chief Justice Mogoeng ordered to retract Israel comments". News24. Retrieved 20 January 2024.
  33. ^ Khumalo, Juniour (4 April 2021). "Mogoeng denounces 'flawed and superficial' JCC findings". City Press. Retrieved 20 January 2024.
  34. ^ Khumalo, Juniour (28 May 2023). "#LadyRussiagate: Ramaphosa appoints retired judge Phineas Mojapelo to chair panel probing allegations". News24. Retrieved 20 January 2024.
  35. ^ O’Regan, Victoria (28 May 2023). "Lady R inquiry: Ramaphosa appoints Judge Mojapelo to chair panel". Daily Maverick. Retrieved 20 January 2024.
  36. ^ Maughan, Karyn (13 November 2023). "Ramaphosa denies putting judicial independence at risk by appointing judge to investigate Lady R". News24. Retrieved 20 January 2024.
  37. ^ Maluleke, Elias (8 November 2003). "Wife sues top judge". News24. Retrieved 20 January 2024.
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