The farewell celebration held by the National Association of Democratic Lawyers (NADEL) for retired Justice Xola Mlungisi Petse, on 19 July 2024 at the Walter Sisulu University, was filled with distinguished guest speakers who shared their interactions with Justice Petse during his career as a legal practitioner and judge. Judge President of the Eastern Cape Division of the High Courts, Selby Mbenenge, gave credit to Justice Petse for having honed the drafting skills of many young legal practitioners. He also pointed out that with the advent of the Right of Appearance in Courts Act 62 of 1995, Justice Petse was one of the first attorneys to have utilised the right of audience in the High Court. He said that he had been a formidable opponent to many a counsel whose sole preserve had hitherto been in the High Court.
He described him as an astute jurist who at no stage was ever discourteous to the court or his opponent. He added that he still briefed counsel when circumstances permitted it, presumably being of the view that two are better than one. Judge President Mbenenge shared a moment in which he had the privilege of working closely with Justice Petse in a matter involving numerous employees of the Department of Interior of the former Transkei, stationed at the government printer, who had been promoted through a conversion of posts and scales by the then Transkei administration.
Judge President of the Eastern Cape Division of the High Court, Selby Mbenenge, also paid tribute to the retired Judge Petse at a farewell function held in his honour.
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Judge President Mbenenge pointed out that the ministry working with Justice Petse on the case as the instructing attorney was a memorable moment. He added that while executing their mandate, they uncovered that some of the purported applicants at the time the applications were launched were no longer in the employee of the Home Affairs department and some had passed away. He said the first step was to seek consolidation of these applications, which was successfully done. He pointed out that it was during this time that he befriended Justice Petse. He said that the brief drafting stage took them a month and they were interacting with officials from the Department of Home Affairs.
Judge President Mbenenge added: ‘I learned one thing during the interaction with him that even though he tends to exude a serious mood, behind that was a warm-hearted person. Though introverted and preferring solitude, during the best of times he was witty and jocular.’
Advocate and retired Mthatha Director of Prosecutions, Humphrey Lusu said that when Judge Petse was admitted as an attorney in 1982 it seemed like yesterday. He pointed out that he flourished with energy and experience. He added that in 1983 when the Bar in Mthatha provided South Africa with the first black judge by the name of Tholakele Madala, later elevated to be one of the founding judges of the Constitutional Court in October 1994 it was a time of opening up of opportunities, which like William Wordsworth in his time described prior the end of the French Revolution as a ‘bliss was it in that dawn to be alive’.
Advocate and retired Mthatha Director of Prosecutions,
Humphrey Lusu spoke about how proud Justice Petse has made them while serving the country as a judge.
Photo: Facebook: The South African Judiciary
Mr Lusu pointed out that Justice Petse’s experience in both work and ethics had been acquired firstly from doing articles in the firm in the offices of Hughes Chisholm and Airey Attorneys, who had been a parliamentarian of the United Party before Justice Petse’s days. He said that Justice Petse later joined the office of the Sangoni Partnership, which was the biggest black firm. He added that Justice Petse has appreciated his judicial career and having ascended to the Deputy Presidency of the Supreme Court of Appeal (SCA) can only be testimony of good grounding, focus and dedication worthy to emulate. Speaking from his home province, Mr Lusu noted: ‘I can safely say he gives us pride. His initial experience both as a practitioner and as a judge from 2005 to 2012 was gained here.’
Legal practitioner, Dumisa Ntsebeza SC, shared a story of how he worked with Judge Petse on a matter and how they fought hard to protect the rights of the accused, pre-1996 Constitution days.
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During his tribute to Justice Petse, legal practitioner, Dumisa Ntsebeza SC said that when Justice Petse joined the SCA, it was the last bastion of white male judges and it was a very difficult task for the Judicial Service Commission (JSC) to break that, because virtually everybody who was in that court was white and male, so when Justice Petse was recommended for appointment to that court by the JSC it was for him to be a pioneer in yet another area. He shared a story of a case they worked on of a man who was accused of harbouring a terrorist. While the accused was in detention, he was forced by authorities to shave, which led to him getting blisters. Mr Ntsebeza SC detailed the fight they had put in with Justice Petse to fight for the rights of the accused at the time where it was pre-Constitution days, where there was no s 12 freedom and security of the person rights, which arguably they could have used in order to interdict the prison authorities from forcing the gentleman to shave.
Judge Bantubonke Tokota bid farewell to his old-time friend in a beautiful tribute at the farewell function that was hosted by the National Association of Democratic Lawyers.
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Judge Bantubonke Tokota spoke as a friend of Justice Petse. He said that he has known him as a friend for 49 years. He pointed out that the beginning of their friendship was in 1975 when they met at the University of Fort Hare. He said that friendship is something which is funny as it happens spontaneously. ‘You do not choose friends and say I want you to be my friend like we propose to a woman. He was and still is one of my distinguished friends. I have got many other friends, of course, as you know you have got two categories of friends,’ Judge Tokota added. He described Justice Petse as a man of integrity, with an upright decisive character. ‘In my opinion, it is impeccable and beyond reproach. One of the distinguishing factors is that he does not take decision in accordance with whom he is dealing with, but he does so in accordance with facts and environmental circumstances prevailing at the time. That is an in ineradicable character, which he chose in his active life and that befits the kind of an honourable judicial officer of his integrity,’ Judge Tokota noted.
Judge Tokota further said Justice Petse is a principled man. He added that some of the people especially the legal representatives, say he is strict. However, he said that Justice Petse is not strict. That his principles go according to the rules, and according to the way things are to be done. He added that Justice Petse would never make promises about something, when he knows that he will not be able to fulfil those promises. ‘I value my life with you, my friend. My life has been enriched because of you,’ Judge Tokota said.
Legal practitioner, Dali Mpofu SC, described Judge Petse as a humble person.
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Legal practitioner, Dali Mpofu SC, spoke about the time he represented Justice Petes’s brother in a matter they won. He pointed out that every time he would interact with Justice Petse, Justice Petse would thank him for saving his brother’s job as a school principal. He said that that showed how gracious Justice Petse is. Mr Mpofu SC added that one of the issues he wanted to discuss was in regard to diversity in the Judiciary in particular. He added that he might have sounded like a scratched record by those who were watching some of the interactions he had with candidates at the JSC. ‘Because it has always been my thesis that section 174 of the Constitution, which deals with diversity, comes very short because it confines the issue of diversity to race and gender and it is my honest view that diversity goes much wider than that,’ Mr Mpofu SC said.
Mr Mpofu SC pointed out that there are other types of criteria, which could have been used, religious diversity, ethnic diversity, language all sorts of things. But he added that he just wanted one specific issue which is ideological diversity. ‘And I think that is very important, it might well be that you could have churches who are diverse from a point of view of how you look, you watch them with a naked eye, but if they all think alike in terms of the ideological standpoint then there is no diversity from that point of view.’
Chief Justice Mandisa Maya spoke in her tribute as the Deputy Chief Justice at the farewell function of retired Judge Xola Mlungisi Petse, hosted by the National Association of Democratic Lawyers at Walter Sisulu University on 19 July 2024.
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Chief Justice Mandisa Maya, who was Deputy Chief Justice at the time when paying tribute to Justice Petse, said that in early 1988 Justice Petse showed braveness by returning to university on a full-time basis to enrol for the LLB degree at the University of Natal. She added that this was an entirely new beginning for him because when he completed that degree, he returned to the offices of Hughes Chrisholm to start almost at the bottom again as an associate until he finally established his own law firm at the dawn of democracy in September 1994. As expected, it became very successful, doing work, which was ordinarily available only to white law firms and that was notarial work, conveyancing work and High Court litigation, which back then, was the almost exclusive territory of advocates, but in which Justice Petse trained to specialise in.
Chief Justice Maya added that it was not a surprise when Justice Petse became one of the first attorneys to be granted a right of appearance in the High Court when the right was promulgated. She said while running a busy practice, Justice Petse managed to give back to his community in many profound ways, such as mentoring and training many young aspiring legal practitioners in his firm and routinely offered various pro bono services to those who came from disadvantage backgrounds and in the greater community. She pointed out that among other things, Justice Petse was in the counsel of the Cape Law Society from 1998 to 2001, and he always played an active role in church affairs, which ended with him in the position of chancellor of the Anglican Diocese of Mbhashe.
Chief Justice Maya pointed out that within two years of his permanent appointment as a judge, Justice Petse was assigned the added responsibility of being the acting head of the division of the Eastern Cape High Court. ‘And in court he presided over his cases in a fair, kind, but very firm manner. He proved himself a very efficient administrator and introduced various new creative ways of doing things, which greatly enhanced the functioning of his court, and he set an impeccable example for his colleagues by always ensuring that his judgments were always delivered expeditiously, and this is a habit that he kept until his very last days on the Bench,’ Chief Justice Maya noted.
Chief Justice Maya added that after serving on the provincial Bench for seven years, Justice Petse was elevated to a permanent position at the SCA in June 2012, after acting as an appellate judge in that court and establishing himself as solid material for permanent appointment such that he was kept for two whole years which was unprecedented. ‘So, it was an easy matter for him. Well, we had to persuade him to make himself available for the appointment. I remember he was not particularly keen to do that, but once he gave us the permission to nominate and support him, he was appointed and so he spent 12 whole years which have just flown by so quickly,’ Chief Justice Maya added.
Chief Justice Maya pointed out that in those 12 years, Justice Petse made a tremendous contribution not only to the development of the jurisprudence of the SCA, but he helped maintain the efficient running of the court and importantly helping to forge collegiality in what was a fractured and very difficult work environment. She mentioned some of the judgments that Justice Petse had penned down. Such as Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another (Mdumiseni Dlamini and Another as Amici Curiae) 2019 (1) BCLR 53 (CC). She said this case broke new ground by affirming the informal land rights held under the Interim Protection of Informal Land Rights Act 31 of 1996 and acted as a result of our country’s constitutional efforts to rectify the impacts of past discriminatory land laws. She pointed out that in his unanimous decision Justice Petse upheld an appeal by families of the Lesetlheng community who had been facing mining induced eviction from land they purchased a century ago but was held in a trust by the state on their behalf due to racially discriminatory laws forbidding their ownership of it. Mining companies have been known to undermine the land rights of vulnerable individuals and communities and have denied them their rights to be properly consulted and compensated during mining operations.
Judge Petse receiving his farewell gift at the function held in his honour.
Photo: Facebook: The South African Judiciary
The President of NADEL, Mvuzo Notyesi, presented Justice Petse with a shield on behalf of the organisation. He said that as Justice Petse goes home to retire, the shield is in defence of the legacy that Justice Petse lived. He was also gifted a Basotho blanket and hat to reflect the diverse person Justice Petse is. In his speech, Justice Petse thanked NADEL as an attorney who always tried his level best to be the best. And at the forefront of his mind was the realisation that his clients had entrusted their affairs, money even their personal freedoms and lives to him. He pointed out that many of his clients were ordinary people faced with complex challenges that life threw at them at a time when they lacked capacity to address them on their own.
The celebrant, retired Judge Petse, gave a speech at his farewell function that was hosted by the National Association of Democratic Lawyers on 19 July 2024 in Mthatha, in the Eastern Cape.
Photo: Facebook: The South African Judiciary
Justice Petse added that as a judge he knew fully well that litigants expected no less. ‘One thing, which I reiterated with my colleagues at the SCA, was that most of the cases which came before us were appeals against a single judgment in the High Court and when litigants came before us they saw five judges sitting on the Bench and that each one of us as members of the Bench owed those litigant a duty to apply our minds to the task at hand, so that any judgment which comes out of the court at the end of the day, would be a result of the collective wisdom of five judges,’ Justice Petse added.
Justice Petse said that the work at the SCA was intellectually stimulating. He added that even there was heavy workload at the court, there were also light moments. He spoke about a comment that Mr Muzi Sikhakhane SC made, that for justice to discharge, it requires men and women of integrity, honesty, moral rectitude, unwavering courage and whose ethical outlook is beyond question. He added that all of these attributes must of course be underpinned by great industry and forensic skills for the lawyers today to do their work to the best of their ability. ‘And I dare say that practitioners who are poor in these qualities and attributes, tarnish the good name of the profession. I therefore respectfully ask each one and every practitioner at all times to uphold and defend without infringing the good name of the profession in the public.’
Justice Petse expressed his heartfelt gratitude to Chief Justice Maya. He said it has been a profound privilege and honour for him to have been afforded the opportunity to serve his beloved country. ‘I thank all of you from the deepest depth of my heart.’
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
