JUDICIAL CONDUCT COMMITTEE
In the matter between:
MRFKOBJANE
and
JUDGE PRESIDENT MG PHATUDI
JUDGE NAUDE-ODENDAAL
Date: 31 July 2026
RefNo: JSC/176/04/2025
COMPLAINANT
FIRST RESPONDENT
SECOND RESPONDENT
Decision: The complaint against Judge President Phatudi and
Judge Naude-Odendaal is dismissed in terms of section l 7(4)(a)
of the Judicial Service Commission Act 9 of 1994.
RULING
THE JUDICIAL CONDUCT COMMJTTEE (MLAMBO DCJ)
Introduction
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[ 1] Mr Frans Kobjane lodged a complaint with the Judicial Conduct Committee
(the JCC) against Judge President Phatudi, Judge Naude-Odendaal and
Acting Judge Deane of the Limpopo Division of the High Court. The complaint
arises from litigation concerning the Mamphoku Makgoba Community Trust,
Makgoba Asset Management Company (Pty) Ltd and related disputes concerning
the Makgoba community.
[2] The complaint was considered by me. I directed that the complaint against
Judge President Phatudi and Judge Naude-Odendaal be dealt with in terms of
section 17 of the Judicial Service Commission Act 9 of 1994 (the Act). Although the
complainant also referred to Acting Judge Deane in the complaint, that aspect of the
complaint was not referred to a section 17 inquiry, as the Judicial Conduct
Committee lacks jurisdiction to deal with complaints against Acting Judges. This
ruling is therefore confined to the complaint against Judge President Phatudi and
Judge Naude-Odendaal.
[3] he respondents were invited to respond to the complaint and filed written
submissions. The complainant was thereafter invited to comment on those
submissions and filed further written submissions in response to both respondents. I
have considered the complaint, the respondents' submissions, the complainant's
fiuther submissions, and the documents placed before me.
[4] Section 17 provides for an inquisitorial process. 1 The question is not whether
the orders granted in the underlying litigation were correct, nor whether the
complainant or other members of the Makgoba community have meritorious claims
1 Section 17(2) of the Act provides, "(a]ny inquiry contemplated in this section must be conducted in an inquisitorial
manner and there is no onus on any person to prove or to disprove any fact during such investigation."
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in those proceedings. The question is whether the information obtained in terms of
section 17(3) establishe s judicial misconduct under the Act and the Code of Judicial
Conduct (the Code).2
The Complaint
[5] The complainant states that he is a resident of Sapekoe Tea Estate and that he
represents approximate ly 200 concerned members of the Makgoba community who
reside there. He alleges that those community members lack financial resources and
that, in Makgoba-related litigation, the Limpopo Judiciary favours parties with
financial resources, including Makgoba Asset Management and the Makgoba
Community Trust Committee. He further alleges that their matters are not
prioritised, that their cases are dismissed without a proper opportunity to present
them, and that the Limpopo Judiciary is biased against them.
[6] In relation to Judge President Phatudi, the complainant relies principally on
an order dated 19 October 2023 under case number 11901/2022. That order records
that the matter was removed from the roll because the presiding officers were
conflicted, that the applicants were directed to apply to the AJP or DJP for the matter
to be heard as a special motion, and that costs were reserved. The complainant
appears to contend that Judge President Phatudi was conflicted in Makgoba -related
2 Section 17(3) of the Act provides , "[f]or the purpose of an inqui1y referred to in subsection (2), the Chairperson or
member concerned-
( a) must invite the resporndent to respond in writing or in any other manner specified, and within a specified
period, to the allegatio ns;
(b) may obtain, in the manner that he or she deems appropriate, any other infom1ation which may be relevant to
the complaint; and
(c) must invite the complainant to comment on any information so obtained, and on the response of the
respondent , within a specified period."
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matters because, while in practice, he was allegedly involved in the drafting of the
trust deed.
[7] In relation to Judge Naude-Odendaal , the complainant alleges bias and unfair
treatment in Makgoba-related litigation. The material placed before me includes
Judge Naude-Oden daal 's reasons in case number 8863/2024, in which an urgent
application was brought against the complainant concerning an alleged breach of an
order granted by Deane AJ on 26 March 2024 under case number 2414/2024.
The Responses
[8] Judge President Phatudi denies misconduct. He states that the complaint does
not disclose facts showing unprofessional conduct, bias or misconduct by him. He
explains that the order of 19 October 2023 did not determine the merits of the
Makgoba dispute. On his version, the matter was removed from the roll because a
possible conflict was identified, the applicants were directed to approach the AJP or
DJP for the matter to be allocated as a special motion before another judge, and costs
were reserved.
[9] Judge Naude-Odendaal also denies misconduct. She states that she has no
direct or indirect interest in the Mamphoku Makgoba Community Trust and that she
is not, and has never been, a beneficiary of that trust. She further states that her
written reasons show that she considered the submissions before her, and that there
is no merit in the allegation that the complainant was not allowed to present his case.
[l OJ In response to Judge Naude -Odendaal's submissions, the complainant
maintains that he was not afforded a fair opportunity to present his case, that
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Judge Naude-Odendaal's response is biased and unsupported by evidence, and that
she made untruthful statements. He also relies on the disputed authority and
locus standi of Makgoba Asset Management and the Mamphoku Makgoba
Community Trust Committee, and contends that Judge Naude-Odendaal's handling
of Makgoba-related matters favoured the opposing parties.
[11] In response to Judge President Phatudi's submissions, the complainant
maintains that the complaint concerns a reasonably perceived conflict of interest
arising from Judge President Phatudi 's alleged prior professional involvement in the
drafting of the Mamphoku Makgoba Community Trust Deed. He relies on the fact
that Judge President Phatudi previously removed or recused himself from a
Makgoba-related matter, and also refers to later Makgoba-related proceedings in
which Judge President Phatudi exercised judicial authority. The complainant
submits that these issues require further examination of the Trust Deed, the relevant
court files, the recusal record, and the records of the later proceedings.
Applicable Legal Framework
[12] A complaint under section 17 must be determined within the framework of
the Act and the Code. Section 17(2) provides that a section 17 inquiry is inquisitorial
and that there is no onus on any person to prove or disprove any fact. On the
information obtained under section 17(3), the Acting Chairperson must determine
whether the complaint should be dismissed , whether it has been established and
remedial action under section 17(8) should be imposed, or whether a
recommendation should be made that the complaint be investigated by a Tribunal.3
3 Section 17(4) of the Act provides, "[i]f, pursuant to the steps referred to in subsection (3), the Chairperson or member
concerned is satisfied that there is no reasonable likelihood that a fonnal hearing on the matter will contribu te 10
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[13] For present purposes, the relevant statutory grounds are section 14(4)(b),
which concerns a wilful or grossly negligent breach of the Code, and section
14(4)(et which concerns any other wilful or grossly negligent conduct incompatible
with or unbecoming the holding of judicial office.4 Article 2(3) of the Code reflects
the same threshold.5 The material must therefore establish wilful or grossly negligent
misconduct. A broad allegation of bias, or dissatisfaction with the outcome of
litigation, is not enough.
[14] Article 13 of the Code deals with recusal where there is a real or reasonably
perceived conflict of interest , or a reasonable suspicion of bias based on objective
facts.6 Article 9 concerns fairness, impartiality , the audi alteram partem rule and
determining the merits of the complaint , he or she must, on the strength oft:he information ohtained hy him or her in
terms of subsection (3)-
(a) dismiss the complaint;
(b) find that the complaint has been established and that the respondent has behaved in a manner which is
unbecoming of a judge, and impose any of the remedial steps referred to in subsection (8) on the respondent;
or
(c) recommend to the Committee, to recommend to the Commlss ion that the complaint should be investigated
by a Tribunal."
4 Section 14(4) of the Act provides, "(t]he grounds upon which any compla int against a judge may be lodged, are any
one or more of the following:
(a) Incapacity giving rise to a judge's inability to perforrn the functions of judicial office in accordance with
prevailing standards, or gross incompetence, or gross misconduct, as envisaged in section 177 (1) (a) of the
Constitution;
(b) Any wilful or grossly negligent breach of the Code of Judicia l Conduct referred to in section 12, including
any failure to comply with any regulation referred to in section 13 (5);
(c) Accepting , holding or performing any office of profit or receiving any fees, emoluments or remuneration or
allowances in contravention of section 11;
allowances in contravention of section 11;
(d) Any wilful or grossly negligent failure to compfy with any remedial step, contemplated in section 17 (8),
imposed in terms of this Act; and
(e) Any other wilful or grossly negligent conduct, other than conduct contemplated in paragraph (a) to (d), that
is incompatible with or unbecoming the holding of judicial office, including any conduct that is prejudicial
to the independence, impartiality, dignity, accessibility, efficiency or effectiveness of the courts."
5 Atticle 2(3) of the Code provides, "[a]ny wilful or grossly negligent breach of this Code is a ground upon which a
complaint against a judge may be lodged in terrns of sec lion 14 ( 4) (b) of the Act."
6 Article 13 of the Code provides , "(a] judge must recuse him-or herself from a case if there is a-
(a) real or reasonably perceived conflict of interest; or
(b) reasonable suspicion of bias based upon objective facts, and shall not recuse him -or herself on insubstantial
grounds."
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reasons.7 Note 9(v) of the Code, however, makes clear that errors of fact or law,
including procedural rulings, are to be dealt with through the ordinary appeal and
review procedures and do not, without more, found a valid complaint of judicial
misconduct.
Evaluation
[15] The complaint against Judge President Phatudi is not established. The order
of 19 October 2023 relied upon by the complainant does not show that Judge
President Phatudi improperly sat in a matter despite a conflict. It records that the
matter was removed from the roll because the presiding officers were conflicted, that
the applicants were directed to approach the AJP or DJP for the matter to be heard
as a special motion, and that costs were reserved. A judge who refrains from deciding
a matter because a conflict or perceived conflict may arise does not, for that reason,
commit misconduct.
[16] The complainant's further submissions do not alter that conclusion. I accept
that the complainant now places greater emphasis on perceived conflict, prior
professional involvement, the Trust Deed, and later Makgoba-related proceedings.
However, the materia[ before me does not establish that Judge President Phatudi
acted with bias, improper motive, or personal interest, or that he wilfully or grossly
negligently breached the Code. The fact that Makgoba-related litigation has
continued, and that later orders may have had serious consequences for the
7 Article 9 of the Code provides, " (a] judge must-
(a) resolve disputes by making findings of fact and applying the appropriate law in a fair hearing, which includes
the duty to-
(i) observe the letter and spirit of the audi alteram par/em rule;
(ii) remain manifestly impartial; and
(iii) give adequate reasons for any decision."
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complainant or other community members, does not itself establish misconduct by
Judge President Phatudi. To the extent that the complainant contends that
Judge President Phatudi should have recused himself in any later proceedings, or
that any order granted by him was procedurally or substantively wrong, those are
matters for recusal, appeal, rescission or other ordinary legal remedies.
[17] The complaint against Judge Naude-Odendaal is also not established. Her
response denies any direct or indirect interest in the trust, and no material before me
establishes such an interest. Her written reasons in case number 8863/2024 show
that she dealt with the urgent application, the prior orders, the applicants'
submissions, and the respondent's opposition. The complaint does not establish that
she was biased, had a personal interest in the matter, acted from improper motive, or
refused to hear the party before her. The complainant's further submissions do not
place objective material before me establishing such interest, bias or improper
motive.
[18] The complainant's further submissions concerning Judge Naude-Odendaal
remain directed, in substance, at the manner in which she dealt with the litigation
before her. The allegations concerning lack of locus standi, alleged misleading
conduct by attorneys, the effect of earlier orders, the alleged breach of the order
granted by Deane AJ, costs, leave to appeal, and the fairness of the proceedings all
concern the correctness or procedural regularity of the judicial decisions. Those
issues may be raised through appeal, rescission or other ordinary legal remedies.
They do not, without more, establish wilful or grossly negligent misconduct under
the Act and the Code.
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[ 19] The complaint raises broad concerns about the handling of Makgoba-related
litigation in the Limpopo Division. Those concerns may be sincerely held. However,
the section 1 7 inquiry must be determined on the material placed before me and
within the limits of the JCC's disciplinary jurisdiction. The material does not
establish that either respondent committed judicial misconduct.
Ruling
[20] The complaint against Judge President Phatudi and Judge Naude-Odendaal is
dismissed in terms of section l 7(4)(a) of the Judicial Service Commission Act 9 of
1994.
THE JUDICIAL CONDUCT COMMITTEE
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