Durban - Barnabas Xulu of B Xulu & Partners Incorporated (BXI), wants Judge Owen Rogers removed from a shortlist of candidates for the Supreme Court of Appeal (SCA).
BXI wrote to the Judicial Services Commission (JSC) opposing the appointment of Judge Rogers and calling for his name to be taken off the list of the list of candidates shortlisted for the position of permanent judge of the SCA or any Bench in the Republic of South Africa during the current selection process.
“I respectfully submit that Judge Owen Rogers does not meet any of the foregoing requirements as he is currently facing a formal complaint of gross judicial misconduct pending before the Judicial Services Commission,” the statement read.
Xulu said it would be highly irregular to promote judges to the SCA while they face unresolved complaints of judicial misconduct. Rogers and 10 other judges are currently under JSC investigation for gross judicial misconduct after refusing to share a Bench with Judge Mushtak Parker.
BXI argues that the JSC processes in appointing judges should not ignore relevant evidence which casts the shortlisted candidate in a negative light and places in doubt claims that they are “fit and proper” for judicial appointment.
“Against this background, I urge the JSC to probe the very serious allegations of gross judicial misconduct against Judge Rogers and that his candidacy for a position on the SCA be rejected as he cannot meet the fitness criterion while facing serious allegations if judicial misconduct,” Xulu said.
On March 8, Judicial Conduct Committee Secretary Sello Chiloane confirmed to Daily News that the matter was receiving attention. “The commission has received the complaint which is being considered by the Judicial Conduct Committee”.
It is expected that the committee will, after having considered the complaint, commence with the process to determine the merits of the complaint brought by BXI. if satisfied in the event of the complaint being established, the committee will have to appropriate remedial action as required by section 17(8) of the JSC Act.
Shortlisted candidates for the permanent judges positions at the SCA are: Judges Zeenet Carelse, Johannes Willem Eksteen, Trevor Richard Gorven, Wendy Hughes, Pretrus Arnolus Koen, Aubrey Phago Ledwaba, Nolwazi Penolope Mabindla-Boqwana, Keoagile Elias Matojane, Selewe Peter Mothale, Owen Lloyd Rogers and Sharise Weiner.
Xulu had previously asked for Judge Rogers to recuse himself from presiding in the matter between the Department of Agriculture, Forestry and Fisheries, Xulu’s firm and four other respondents.
Last year, Xulu and BXI asked Western Cape High Court judge Rogers for leave to appeal against his judgment earlier this year ordering Xulu to return the R20.2 million in legal fees paid by the department for representing it, despite having engaged Emang Basadi Legal and Forensic Services. Judge Rogers refused Xulu and BXI’s application for leave to appeal, with costs.
At the time Xulu also argued that the judge erred in finding the agreement between his law firm and the department invalid and reviewing and setting it aside.