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JOHANNESBURG BAR COUNCIL

COMMENTS ON JSC SHORTLISTED CANDIDATES

JUNE 2015

Constitutional Court Judge D Pillay 2Judge LL Tshiqi 31Judge LV Theron 41Judge NZ Mhlantla 71 Supreme Court of Appeal Judge MM Maya 92

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CANDIDATE: JUDGE D PILLAY


COURT FOR WHICH CANDIDATE APPLIES:

CONSTITUTIONAL COURT

1. The candidate’s appropriate qualifications

1.1. The candidate holds the following degrees:

1.1.1. B.Proc (UNISA) (1982); and

1.1.2. LLM (Labour) (UND) (1993).

1.2. The candidate also has a certificate in Constitutional Law

(UND) (1994).

1.3. The candidate is appropriately qualified.

2. Whether the candidate is a fit and proper person

2.1. The candidate has been actively involved in the legal field since

1979 (when she served her articles). The candidate practised as

an attorney from 1983, including as a partner of a legal firm,

until 2000, when she was appointed to the Labour Court. After

ten years as a Labour Court Judge, in July 2010 the candidate

was appointed as a Judge of the High Court, after two acting

appointments in 2003 and 2005.

2.2. There is no reason to doubt that the candidate is a fit and proper

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person.

3. Whether the candidate’s appointment would help to reflect the

racial and gender composition of South Africa

3.1. The candidate is a black woman.

3.2. Of the ten permanent judges of the Constitutional Court at

present, five are black men, three are white men, and two are

black women. As is apparent, there is a significant gender

imbalance on the Court. It is also notable that the Constitutional

Court has never had more than two permanently-appointed

women at any given time.

3.3. Women have historically been under-represented in senior

judicial office and the elevation of a female candidate would be

an important contribution to the gender transformation of the

judiciary.

3.4. Of particular relevance, the candidate is a black woman, of

Indian descent, a group which is particularly poorly represented

on the bench.

4. The candidate’s knowledge of the law, including constitutional

law

4.1. It is undoubted from the candidate’s application and the

judgments that we have considered that the candidate strives to

apply the constitution wherever she can in her judgments, such

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that the Constitution is imported into most of her judgments,

including as a court of first instance.

4.2. The nomination by the Centre for Applied Legal Studies

recognises that the candidate has not acted in the Constitutional

Court but that this should not constitute a hindrance to her

appointment to the Constitutional Court. Notably, the candidate

was a Judge of the Labour Court for over ten years.

4.3. She states in her application that she has issued more than one

thousand judgments (which overwhelmingly appear to be labour

related) including retrenchment, closure of businesses, strikes,

lock-outs, discrimination, affirmative action, equality, non-

appointment, HIV/Aids testing, review of labour arbitration

awards, international empowerment contracts, whistle-blowing,

promotion of access to information and justice, electronic

transaction law, constitutional law and procedural matters.

4.4. The candidate points out that more than one hundred and twenty

of her labour law judgments have been published or reported in

the law reports, journals and the media.

4.5. The candidate is well published and has written more than 40

articles and delivered speeches discussing important topics such

as the Constitution and the judiciary, South African democracy

and the Constitution, the plight of women in the workplace and

substantive determination of affirmative action disputes. It may,

however, be noted that none of the published material has been

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cited in judicial decisions despite the relatively prolific output.

4.6. The candidate’s extensive experience in labour law will stand

her in good stead in the Constitutional Court.

4.7. Although it is undoubted that the candidate has extensive

experience in labour law and constitutional law, there does

appear to be somewhat of a paucity of reported judgments in

other fields, particularly in commercial law, as appears from the

table below of the judgments that have been reviewed.

4.8. Of 48 non-labour judgments that were reviewed, the candidate

wrote judgments in the following fields:

4.9. Although three of the judgments have been classified as constitutional,

the

application

of the

Field of Law Cases

Constitutional Law 3

Criminal Law 5

Contract Law 4

Law of Delict 1

Property Law 1

Family Law 2

Law of Succession 1

Insolvency Law / Business Rescue

3

Civil Procedure 8

Criminal Procedure 5

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Constitution and of constitutional values features in most of the

judgments.

5. The candidate’s commitment to the values of the Constitution

5.1. The candidate remarks that her most important contribution to

the law and the pursuit of justice is the recognition the candidate

received as a human rights defendant from Amnesty

International SA (Durban Group). This is clearly significant.

5.2. The most notable feature of the candidate’s application, her

nominations, her judgments and her academic writings, is her

commitment to the values of the Constitution.

5.3. The candidate recognises that the Constitution is transformative

and is intended for use as a tool to terminate inequality and

injustices. The candidate describes the Constitution as not

libertarian but a transformative Constitution that needs to

engage with concepts of power and community, including

eradicating socio-economic inequality. This is evident in most of

the candidate’s judgments that were reviewed.

5.4. Particularly illuminating is the following extract from the

candidate’s judgment in Venter v Khan and Others [2014]

ZAKZDHC 48 (3 November 2014):

“Some judgments acknowledge that Constitution is not

libertarian but ‘promotes an entirely different vision of our

society’. A transformative Constitution needs to engage with

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concepts of power and community. With the Constitution

entrenching third generation rights such as access to

housing and the right to education, and the CC having to

give effect to them if it is to play a genuinely transformative

role, it is hard to describe our Constitution is anything but

inclining towards social democratic”.

5.5. The candidate makes every effort to make use of the

Constitution as a transformative tool to address the situation that

presents before her in court and to rectify what the candidate

perceives to be any inequality.

5.6. The candidate applies the Constitution even in circumstances

where the parties before her did not raise constitutional issues or

appreciate the role the Constitution had to play in the

determination of the dispute. For example, in the recent but as

yet unreported case of Mundalal v Director of Public

Prosecutions KZN and Others, the candidate, writing for the

Full Court, applied the Constitution when determining an

application for the review of the administrative decisions of the

Director of Public Prosecutions and the Clerk of the Criminal

Court to issue a certificate of nolle prosequi, the issue of a

criminal summons and the ruling of a regional Magistrate. The

candidate identified as a “vital constitutional issue”, which the

candidate noted regrettably neither party had raised, namely that

a decision to deny a private prosecutor the right to prosecute

should be taken cautiously and not least because it implicated

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the right to access to the court under section 34 of the

Constitution. This led the candidate to hold that, provided the

requirements for a private prosecution under the Criminal

Procedure Act were met and the right to prosecute survived a

limitation assessment under section 36 of the Constitution, a

private prosecution should be allowed to proceed.

5.7. Although identifying this constitutional imperative, the

candidate nonetheless granted the application for review,

bringing an end to the private prosecution.

5.8. Of importance is the candidate’s human rights practice as an

attorney in the 1980s and 1990s, which generated judgments

which dealt with critical topics of the apartheid era such as

emergency detention laws, treason, cross-border abductions by

the security police and the application of audi alteram partem in

the context of refusal of bail and in the context of the treatment

of public servants prior to retrenchments.

5.9. The candidate advocated for detainees, emergency detainees and

activists (including missing and murdered activists) at a time

when her own life appeared to be under threat, which indicates a

determination and fearless attitude towards upholding and

protecting human rights. The candidate describes that she

managed a practice that served more than 250 detainees for the

most part of the various states of emergency.

6. Whether any judgments have been overturned on appeal

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6.1. The candidate in her application estimates that 130 of what

would appear to be her labour law judgments have been

appealed, twelve of which have been overturned.

6.2. The candidate also states in her application that forty appeals

have been noted against her judgments. It is unclear which

judgments the candidate is referring to in this regard, but it

would appear to be the judgments handed down as a Judge of

the High Court.

6.3. What does require some consideration is the candidate’s

judgment whilst sitting in the Labour Court in the matter of the

MEC Department of Education KwaZulu-Natal v Khumalo and

Another 2011 (1) BCLR 94 (LC), which was first appealed to

the Labour Appeal Court and then to the Constitutional Court.

6.4. The candidate discloses that this judgment was overturned on

appeal by the Constitutional Court, but does not mention the

more recent judgment of the Labour Appeal Court, which was

very critical of the candidate’s judgment. Some elaboration is

appropriate:

6.5. The candidate’s judgment in the Labour Court:

6.5.1. The candidate had at the instance of the MEC, consequent

upon an application launched by the MEC after a long

delay, set aside the appointment of two employees on the

basis that their appointment was unlawful.

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6.5.2. The candidate was not impressed with the lack of

accountability of the officials who participated in the

decision to promote Khumalo (K) and who, even after a

grievance was filed, failed to reverse the decision and take

responsibility, instead opting for the device of the protected

promotion of Ritchie (R).

6.5.3. The candidate harshly chastised the manner in which the

MEC handled the matter by not utilising her power to call

on all officials to disclose which officials were involved –

opting instead to mandate a task team which had none of

the MEC’s powers.

6.5.4. The candidate observed of the MEC’s explanation that it

was “at best … an excuse for managerial indecisiveness

and sloppiness and at worst another cover for official

misconduct”.

6.5.5. The candidate branded the official conduct unethical,

arbitrary, supported by no reasons whatsoever and not

rationally connected to the information before the officials.

6.5.6. The candidate also found K and R to have acted

dishonestly.

6.5.7. The candidate observed:

“The tendency to present the public service as a

bureaucracy of unidentifiable nameless, faceless

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functionaries casts a cloak of secrecy that is the very

antithesis of an open, ethical, democratic, accountable

and responsive public service … Wrongdoers within

the public service can be rooted out, provided there is

a will to do so.”

6.5.8. The court finally stated that in intervening in the matter as

invited by the MEC, the court could not turn a blind eye to

the shocking lack of good governance in the department

and the promotions were declared invalid and set aside.

6.6. The Constitutional Court judgment (2014 (5) SA 579 (CC)):

6.6.1. The Constitutional Court disagreed with the candidate’s

judgment in several respects. It was, however, not

particularly critical of the candidate. It found that the

candidate had, notwithstanding the nature of the application

and the strengths of the merits of the MEC’s application,

erred in overlooking (or perhaps more accurately under-

estimating) the delay by the MEC in challenging her own

department’s decisions to promote certain employees.

6.6.2. The Constitutional Court found that whilst the court a quo

(the candidate) “was correct to be cautious in permitting

the delay to non-suit the MEC, its simple reference to

promoting public accountability and the balance of

convenience, as a basis on which to condone, is an

inadequate consideration of the depths of difficulties faced

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by a court when confronted with a review in the labour

context, following the passage of an extensive or

unexplained delay of this nature. While the court

accurately acknowledged its ability to ameliorate prejudice

to Mr Khumalo in the remedy, it did not adequately

consider the fact that the MEC gave no explanation for the

delay or the extent to which the delay constrained an

accurate review. In the result, the court misdirected itself

in overlooking the delay and the grounds for this court's

interference with its exercise of discretion are established.

The delay should non-suit the MEC in relation to her

application for the review of Mr Khumalo's appointment.”

6.7. The Labour Appeal Court judgment ([2012] 12 BLLR 123

(LAC) and (2013) 34 ILJ 296 (LAC) dated 29 August 2012):

6.7.1. Considerably more critical of the candidate was the

judgment of the Labour Appeal Court, although it upheld

the candidate’s judgment.

6.7.2. The candidate did not list this judgment in paragraph 16.4

of her application, although it is the most critical of the

appeal judgments that was found.

6.7.3. The LAC considered the candidate’s judgment to be

‘replete with incorrect factual statements which to a

certain extent formed the basis of some of its findings’.

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6.7.4. The candidate’s finding that the appointments were

unlawful was found to be correct but the candidate was

found to be wrong in the following respects:

6.7.4.1. in approaching the matter on the basis that the court

did not have a discretion to refuse the setting aside of

the impugned decisions – by adopting the view that

once it was found that the impugned decisions were

unlawful they had to be set aside, and

6.7.4.2. the candidate did not appear to have given a proper

consideration to the legal effect of the MEC’s delay in

bringing the review application.

6.7.5. The LAC found that the approach of the candidate was

clearly wrong and contrary to the line of cases in which the

courts had reiterated that in reviewing and considering

whether it would be just and equitable to set aside an

administrative decision, courts had a discretion and the

mere fact that the decision was based on ignorance, mistake

or fraud did not necessarily mean that it had to be set aside

(contrary to the candidate’s finding).

6.7.6. This criticism is particularly apposite as it may raise some

questions as to the candidate’s understanding or application

of relatively settled constitutional and administrative law

principles. The candidate’s judgment is dated 20 May

2010. By then the judgment in Chairperson, Standing

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Tender Committee v JFE Sapela Electronics 2008 (2) SA

638 (SCA) was already well-known and the judgment in

Oudekraal Estates v City of Cape Town 2010 (1) SA 333

(SCA) would just have been reported in the main law

reports.

6.7.7. The appellants’ counsel emphasised in argument before the

LAC that “the problem with the approach of the Court a

quo is that it fixated on what it saw as the illegality of this

administrative action and gave no proper consideration to

the interests of finality, pragmatism and practicality”, a

criticism with which the LAC appeared to have agreed.

6.7.8. The LAC also felt it necessary to comment on the

candidate’s comments related to the MEC and the

appellants K and R, no doubt due to the harshness of these

comments:

6.7.8.1. The LAC stated that it was not correct that the MEC

had violated “every principle of legality and every

tenet of ethical, accountable and transparent public

administration…in the promotion of K and R” – as

there was no evidence suggesting that when K and R

were promoted the MEC was aware that their

promotions were irregular. The evidence on the record

suggested that as soon as the MEC became aware of

the allegations of irregularities in promotions she took

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necessary steps to have the allegations investigated.

When she received the report that irregularities were

evident she approached the court for appropriate

relief.

6.7.8.2. The LAC also found that the candidate’s finding that

the MEC’s explanation “is an excuse for managerial

indecisiveness and sloppiness; at worst, another cover

for official misconduct” was not justified (although it

found that there was no reason to interfere in the

exercise of the candidate’s discretion to refuse the

MEC costs).

6.7.8.3. The LAC also found that there was no evidence that

the appellants K & R were guilty of dishonourable

conduct, and accordingly there would have been no

basis to deprive them of their costs in the event that

they had been successful. The Constitutional Court

later shared this criticism of the candidate’s

assessment.

6.7.9. It may be that when the candidate is particularly incensed

by unlawful conduct, her indignation or fervour may cloud

the issues at the cost of analytical rigour and legal

principle.

6.8. No similar degree of criticism of the candidate’s treatment could

be found in any other appeal judgment that was reviewed.

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6.9. For example, in Gordon v Department of Health, KwaZulu-

Natal 2008 (6) SA 522 (SCA), the SCA found that the candidate

had erred in coming to the conclusion that a black male could be

promoted instead of the appellant, a white male, on the basis of

race only but without any proper affirmative action policy being

in place, the SCA finding that such an ad hoc appointment was

arbitrary.

6.10. In Republican Press v CEPPWAWU [2007] SCA 121 [RSA],

the Supreme Court of Appeal disagreed with the candidate that

it was appropriate to reinstate workers some six years after they

had been dismissed, finding that “In my view it was entirely

inappropriate for such an order to be granted. If the learned

judge exercised any discretion in that regard at all (whether she

did so is not apparent from the judgment) in my view the order

that she made is the clearest indication that she misdirected

herself in doing so and the order cannot stand”. The SCA did

however note that the candidate had dealt with the matter with

commendable decisiveness and expedition once seized of it and

that she had delivered “a considered and reasoned judgment”.

7. The extent and breadth of the candidate’s professional

experience

7.1. The candidate has extensive professional experience, first as an

attorney for some seventeen years, including as a partner from

1987 to July 2000, then as a Judge of the Labour Court for ten

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years from 2000 to 2010 and then as a Judge of the High Court

for five years since July 2010.

7.2. The candidate has served as adjunct professor, has been a

visiting academic at various international universities and has

been a research and visiting fellow. She has held various legal

positions such as assessor, the chair of the essential services

committee, and appointments to various bargaining council

bodies and provincial task teams.

7.3. The candidate has further participated in various legal and other

organisations, which demonstrates an active and keen interest in

various spheres of South African society.

7.4. The candidate has further served as a part time senior

Commissioner of the CCMA and as arbitrator at the IMSSA and

AFSA.

7.5. The candidate has been involved in the development of key

pieces of national legislation affecting the public service, labour

and industrial relations at large.

7.6. The candidate has an extensive academic career and whilst

sitting as a Judge of the High Court and Labour Court she was

not idle. The candidate constantly lectured and presented at

conferences which indicates a keen interest in furthering the

educational and constitutional imperatives of South Africa as

well as a desire actively to participate in legal development.

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7.7. It has been noted that none of the candidate’s writings appears to

have been cited judicially, which does warrant mention.

8. The candidate’s linguistic and communication skills

8.1. The candidate’s judgments are in English and she is clearly

fluent and proficient in that language.

8.2. Her proficiency in other languages is unknown.

8.3. The candidate states in her application that she has participated

in two legal writing programmes by the Seattle University

School of Law and she has published various articles on clear

writing.

8.4. The candidate also describes in her application her interests in

legal drafting developed by various engagements in the drafting

of legislation and in legal training, including drafting skills.

9. The candidate’s ability to produce judgments promptly

9.1. The majority of judgments that were reviewed were handed

down within two months, several within a week. The longest

period found in the reviewed judgments was some three months.

Given the number of judgments written by the candidate, this is

commendable.

9.2. As already stated, the Supreme Court of Appeal in the

Republican Press judgment commended the candidate for the

expedition with which she dealt with the matter and in

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delivering a considered and reasoned judgment.

9.3. The candidate’s clear commitment to delivering reasoned

judgments utilising the transformative power of the Constitution

does not prevent her from delivering her judgments promptly.

10. The candidate’s fairness and impartiality

10.1. The candidate displays a strict regard for procedural time limits.

For example in Akoo and Others v Master of the High Court and

Others (5612/11) [2012] ZAKZPHC 45 the candidate did not

take kindly to the parties failing to adhere to procedural time

limits.

10.2. The candidate further demonstrates in various judgments that

she does not hesitate to utilise such discretion as she may have

to achieve a sense of justice, including regarding costs, albeit

not always correctly. See, for example, the discussion above in

relation to the candidate’s judgment in MEC Department of

Education v Khumalo.

10.3. It would appear that the candidate is capable of being stern in

sentencing in criminal matters as was evident in S v Curren (AR

499/10) [2012] ZAKZPHC 46 where the Judge dismissed an

appeal against the conviction and a sentence of life

imprisonment in a matter where the only two witnesses to the

rape were two young children. The judgment was very well

written and it seemed to deliver justice based on an analysis of

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all evidence by the various parties.

10.4. The candidate however does appear inclined to set aside

convictions and sentences where the State had not proved the

guilt of the accused beyond reasonable doubt, such as in S v

Shaw [2011] ZAKZPHC 21; AR 342.

10.5. A reading of the judgments suggests that the candidate is

generally fair and impartial. In the reviewed judgments the

candidate appears to display a tendency of trying to come to the

aid of the powerless, particularly through the application of the

Constitution.

10.6. As noted above, the candidate’s indignation at what she

perceives as official failures or injustices may at times cloud her

analysis or be at the cost of analytical rigour.

10.7. It may be fair to say that there are indications that the

candidate’s desire to achieve just outcomes and to be fair at

times leads her to stray from the application of principle, which

imports a degree of unpredictability.

10.8. For example, the candidate’s recent judgment of Resource

Washing (Pty) Limited v Zululand Coal Reclaimers (10862/2014

[2015] ZAKZPHC 21 (20 March 2015) bears consideration:

10.8.1. The candidate was faced with an application relating to the

termination of business rescue proceedings. The applicant

creditor was seeking a winding up and the relevant

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respondents sought business rescue to continue.

10.8.2. In the former event, liquidators would be in control of the

company. In the latter event, the business rescue

practitioner would be control. In neither event would the

company’s directors be in control of a company that it was

common cause was unable to pay its debts and had not

actively traded for months.

10.8.3. The candidate set aside the resolution placing the

respondent company under business rescue but did not

grant the liquidation order, instead postponing the

application for provisional liquidation sine die so as to

enable the company to address the applicant creditor’s

indebtedness by what the candidate believed to be the

appropriate commercial solution, stating that the

“recapitalisation, the sale of [the respondent company] or

its business in the ordinary course, hold better prospects of

satisfying the claims of creditors than liquidation”.

10.8.4. This effectively returned control of the respondent

company to its directors and erstwhile management in

circumstances where no litigant advanced this outcome,

and it was common cause that the respondent company

could not pay the applicant creditor. This was a remarkable

outcome in such proceedings. The candidate did not raise

this potential outcome with the litigants during the hearing.

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10.8.5. The candidate’s reasoning is difficult to follow.

10.8.6. The candidate found that the company was not financially

distressed but could be rescued. The first finding was

clearly incorrect as it was against the common cause fact

that the company was unable to pay its creditors. The

second finding militated against a discontinuation of the

business rescue proceedings.

10.8.7. It seems fair to say that the candidate’s desire to achieve

what she regarded as the sensible commercial outcome

appears to have substituted for legal analysis and

application of principle in adjudicating the dispute.

11. The candidate’s independent mindedness

11.1. There can be no doubt that the candidate is independent minded.

11.2. A prime example of the candidate’s independent mindedness is

her dissenting judgment in the Full Court decision of

S v Mabaso 2014 (1) SACR 299 (KZP) where the candidate

imposed a heavier sentence than the majority and also disagreed

on the procedural implementation of the minimum sentence

legislation regarding notice to an accused.

11.3. The independent mindedness of the candidate is also evident

from her criticism of the MEC in the Khumalo decision

considered above.

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11.4. The candidate does not hesitate to expound upon legal policy in

her judgments. In D & E Trading (Pty) Ltd v Hilton Village

Centre CC and Others (1342/13) (2013) ZAKZPHC 12 the

candidate discussed the impact that restraints of trade have on

the constitutionally protected rights and values of freedom of

trade, occupation and profession (s 22 of Constitution). The

candidate considered the horizontal application of section 22 in

the following terms:

“... the SCA and the Constitutional Court may yet

pronounce on the horizontal application of section 22

specifically. If this is still an open question then in my view

whether a provision in the Bill of Rights applies

horizontally as a matter of interpretation, depending on the

circumstances of each case. To interpret section 22 to be of

such a nature as to be inapplicable to natural and juristic

persons, would amount to declaring private contracts to be

no-go zones for constitutional scrutiny. Post-apartheid,

very little of public and private life escapes constitutional

scrutiny,”

11.5. The candidate does not shy away from highlighting

shortcomings in the dispensing of justice. In S v Hogg

(R440/2012) (2012) ZAKZPHC 39 in a review of a Magistrates’

Court decision, the candidate found that the magistrate had

made fundamental omissions resulting in the proceedings not

being in accordance with justice. She observed that this was not

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the only instance relating to the particular magistrate, and held

as part of the order that the Magistrates’ Commission should

scrutinise the work of the magistrate under review.

12. The candidate’s ability to conduct court proceedings

12.1. The candidate appears inclined to visit upon the parties her view

as to how the litigation should have unfolded by way of what the

candidate believes to be an appropriate costs order.

12.2. The candidate often rebukes the parties and their legal

representatives for what the candidate perceives to be a waste of

the court’s time or for failing to deal with matters efficiently.

This may have unintended consequences, and makes for

unpredictable results.

12.3. The criticism by the LAC and CC of the candidate’s findings of

dishonesty and the consequences for cost in MEC v Khumalo,

considered above, is an example.

13. The candidate’s administrative ability

13.1. The candidate was a partner of a legal practice for thirteen years

and has been a Judge for fifteen years.

13.2. The candidate has also held secretarial and various

administrative posts in other organisations, also demonstrative

of her administrative ability.

14. The candidate’s reputation for integrity and ethical behaviour

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14.1. There is no reason to doubt the candidate’s reputation for

integrity and ethical behaviour.

14.2. No adverse comments were received.

15. The candidate’s judicial temperament

15.1. As appears from Khumalo and Another v MEC Department of

Education KwaZulu-Natal, the candidate tends at times to

display intemperate indignation. It is in fairness likely that this is

probably indicative of the candidate’s impatience with official

dereliction of duty and her antipathy to injustice.

16. The candidate’s commitment to human rights, and experience

with regard to the values and needs of the community

16.1. As set out above, and as appears in the candidate’s

comprehensive application, there can be no doubt about the

candidate’s excellent credentials in this regard.

17. The candidate’s potential

17.1. The candidate has potential as a valuable addition to the

Constitutional Court.

17.2. The candidate has not yet had an acting appointment in the

Constitutional Court but this should not be a hindrance.

17.3. The candidate appears to have dedicated her professional life, if

not her entire life, to the pursuit of constitutional values in the

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field of law.

18. The message that the candidate’s appointment would send to the

community at large

18.1. The candidate’s appointment would favourably address the

racial and gender composition of the judiciary.

18.2. Given the candidate’s commitment her whole life to the pursuit

of constitutional values in the field of law, the appointment of

the candidate to the Constitutional Court will send out a positive

message to the community at large that those who strive to

achieve these goals can be appointed to the apex court.

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ANNEXURE: LIST OF JUDGMENTS CONSIDERED

Reported decisionsCoates Brothers Ltd v Shanker and Others (2003) 12 BLLR 1189 (LAC)

Pillay JOn appeal: Coates Brothers Ltd v Shanker and Others (2003) 24 ILJ 2284

(LAC) Willis JAOn appeal: Maada v The Member of the Executive Council of the Northern

Province for Finance and Expenditure and Another (2003) 24 ILJ 937 (LAC) Zondo JP

On appeal: Goodyear SA (Pty) Ltd v CCMA and Others (2004) 1 BLLR 7 (LAC) Willis JA

On appeal: Boxer Superstores (Pty) Ltd v Zuma and Others (2008) 29 ILJ 2680 (LAC) DA 6/07 Davis JA

MEC Department of Education KwaZulu-Natal v Khumalo and Another 2011 (1) BCLR 94 (LC) (6 July 2010)

On appeal to LAC: Khumalo and Another v MEC Department of Education KwaZulu-Natal 29 August 2012 DA 3/2011

On appeal to CC: Khumalo and Another v MEC Department of Education KwaZulu-Natal 2014 (5) SA 579 (CC)

De Koker v Minister of Safety and Security 2010 (2) SACR 595 (KZD)Mudaly v Gwala and Others 2011 (1) SACR 302 (KZD)Standard Bank of South Africa v Dlamini 2013 (1) SA 219 (KZD)On appeal: Avonmore Supermarket CC v Venter 2014 (5) SA 399 (SCA) Makwickana v eThekwini Municipality and Others 2015 (3) SA 165

(KZD)

Unreported decisionsResource Washing (Pty) Limited v Zululand Coal Reclaimers (10862/2014

[2015] ZAKZPHC 21 (20 March 2015)

28


Naidoo and Another v Chetty and Others (6546/06) [2010] ZAKZPHC 104 (3 December 2010)

S v Shaw [2011] ZAKZPHC 32; AR 342/10 (1 August 2011)Akoo and Others v Master of the High Court and Others (5612/11) (2012)

ZAKZPHC 45 (31 July 2012) / (2013) JOL 30833 (KZP)S v Hogg (R440/2012) (2012) ZAKZPHC 39 (26 June 2012)Wannenburg v Madamu Technologies (Pty) Ltd (AR87/2012) [2012]

ZAKZPHC 35 (13 June 2012)Helen Roper Consulting v Toyota Tshusho Africa (1171/2010) [2012]

ZAKZPHC 37 (21 June 2012) Green v Amalgamated Brokers CC (7806/2011) [2012] ZAKZPHC 44

(26 June 2012)S v Currin (AR 499/10) [2012] ZAKZPHC 46 (1 August 2012)D & E Trading (Pty) Ltd V Hilton Village Centre CC and Others

(1342/13) [2013] ZAKZPHC 12 (19 March 2013)S v Moyo (CC 98/12) [2013] ZAKZDHC 77 (8 August 2013)On appeal: Hlela v SA Taxi Securitisation (515/2013) (2014) ZASCA 112Sants Private Higher Education Institution v MEC for Department of

Education KZN and Others (5374/2014) [2014] ZAKZPHC 43 (18 June 2014)

Venter v Khan and Others (14185/2011) [2014] ZAKZDHC 48 (3 November 2014)

Gounden and Another v Master of the High Court and Others (3698/2014) [2015] ZAKZDHC 6 (18 February 2015)

Edcon Consolidated Stores Ltd v Pillemer NO D523/04On appeal: Edcon Consolidated Stores Ltd v Pillemer NO D4/06 (2008)

29 ILJ 614 (LAC)On appeal: Edcon Consolidated Stores Ltd v P C Reddy SCA 013/2008Karachi v Porter Motor Group (2000) 21 ILJ 2043 (LC)Porter Motor Group v Karachi [2002] 4 BLLR 357 (LAC)

29


Nedcor Bank Ltd v Frank and Others [2002] 7 BLLR 600 (LAC); (2002) 23 ILJ 1243 (LAC)

On appeal: Feuilherade & Others v Mthimkhulu (2003) 24 ILJ 362 (LAC) Fidelity Cash Management Services v CCMA D1232/02 On appeal: Fidelity Cash Management Services v CCMA DA10/05 LAC Gordon v Department of Health, KwaZulu-Natal (2004) 7 BLLR 708 LCOn appeal to LAC: Gordon v Department of Health, KwaZulu-Natal

DA5/04On appeal to SCA: Gordon v Department of Health, KwaZulu-Natal

(337/2007) (2008) ZASCA (17 September 2008); 2008 (6) SA 522 (SCA)

Tshishonga v Minister of Justice & Constitutional Development & Another (2007) 4 BLLR 337 (LC)

On appeal: Minister of Justice & Constitutional Development & Another v Tshishonga DA6/07

Parry v Astral Operations Ltd (2005) 10 BLLR 989 (LC)Astral Operations v Parry (2008) 29 ILJ 2668 (LAC) CEPPWAWU OBO Gumede v Republican Press (Pty) Ltd [2006] 6 BLLR

537 (LC) Republican Press v CEPPWAWU On appeal: Republican Press v CEPPWAWU [2007] SCA 121 (RSA) Billiton Aluminium South Africa Limited v National Union of

Metalworkers of South Africa (2001) 22 ILJ 434 (LC); [2002] BLLR 38 (LC)

On appeal: Billiton Aluminium South Africa Limited v National Union of Metalworkers of South Africa DA25/2001

Mbete and Another v Registrar of Deeds Pietermaritzburg (12399/14) [2014] ZAKZPHC 53 (4 November 2014)

Nkwanyane v S (AR324/12) [2014] ZAKZPHC 52 (30 October 2014)Sants Private Higher Education Institution v MEC for Department of

Education KZN and Others (5374/20140 [2014] ZAKZPHC 42 (18 June 2014)

30


S v Zungu (SH 105/09) [2013] ZAKZPHC (5 March 2013)Shange v MEC for Education, KwaZulu-Natal (15860/08) [2013]

ZAKZDHC 32 (17 May 2013)Fraser NO and Others v Amalgamated Brokers CC (7806/20110 [2012]

ZAKZPHC 78 (27 June 2012)S v Pillay (AR115/10) [2012] ZAKZPHC 48 (8 August 2012)S v Ndwandwe (AR99/12) [2012] ZAKZPHC 47 (6 August 2012)Akoo and Others v Master of the High Court and Others (5612/110 [2012]

ZAKZPHC 45 (31 July 2012)Helen Roper Consulting v Toyota Tshusho Africa (1171/2010) [2012]

ZAKZPHC 37 (21 June 2012)Wannenburg v Madamu Technologies (Pty) Limited (AR87/2012) [2012]

ZAKZPHC 35 (13 June 2012)

31

CANDIDATE: JUDGE ZLL TSHIQI

32


CANDIDATE: JUDGE ZUKISA LAURA LUMKA TSHIQI




1.1. The candidate has the following qualifications:

1.1.1. BProc Wits University 1989; and

1.1.2. Post Graduate Diploma in Labour Law University of

Johannesburg 2001.



2.1. The candidate is currently serving as a judge of the Supreme

Court of Appeal (SCA) since 2009 and has been serving as a

permanent judge since 2005.








33







judiciary.


law

4.1. The candidate has heard cases in respect of a wide variety of

legal areas. She was part of a unanimous SCA judgment in the

Barnard matter that was heavily criticised by the Constitutional

Court. Apart from serving as an acting judge in the

Constitutional Court, she has not written any groundbreaking

constitutional judgments.

4.2. The candidate has served on the SCA bench from 2009 until

the present time. Prior to this she served on the bench of the

South Gauteng High Court, Johannesburg from 2005 until her

appointment to the SCA. Since 2003 the candidate has also

held acting appointments to the South Gauteng High Court, the

Labour Court, the Competition Appeal Court and the

Constitutional Court (between November 2014 and May 2015).

This review will focus predominantly on the candidate’s

experience in the SCA and in the Constitutional Court.

4.3. A statistical analysis of a sample of judgments in which the

candidate has been a member of the bench reveals that the

34


candidate has been a Court member in 216 cases. She has

concurred in 175 judgments (81.02%) and has written 41

judgments (18.98%). Of the 41 judgments written by the

candidate, 34 were in the SCA. Of the full sample of judgments

written, 11 were in civil matters and 18 were in criminal

matters. A single judgment, or in some cases two judgments,

were written in other fields.

4.4. The percentage of cases in which the candidate has written

judgments for the SCA is considerably lower than would have

been expected, having regard to her period on the SCA bench.

Whilst the candidate has written a number of judgments in

criminal matters, there is no clear evidence of development of a

field, or fields, of expertise in a particular area of civil law. A

review of the cases in which the candidate sat as a member of

the SCA bench demonstrates that she has been exposed to a

variety of topics within different areas of civil law. Whilst this

exposure was inevitably beneficial, the relatively small number

of judgments written by the candidate does not permit any

empirical appraisal to be made of the range of her legal

expertise.

4.5. The judgment referenced by the candidate, when acting on the

Constitutional Court bench in City Power (Pty) Ltd v Grinpal

Energy Management Services (Pty) Ltd (unreported judgment

of 20 April 2015, neutral citation (CCT133/14) [2015] ZACC

8, concerned the application of section 197 of the Labour

Relations Act to public entities. Both the Labour Court and the

35


Labour Appeal Court had found that the section did apply. In

dismissing the appeal to the Labour Appeal Court, Davis JA

had raised, en passant, the question as to whether the

applicability of this section to the situation where a

municipality had assumed the obligation from a previous

outsourcing agreement, imposed an unacceptable financial

burden on the public entity. In the judgment written for the

Court by the candidate it was found that City Power was a

private company performing a public service (paragraph 22)

and that it was an organ of state performing public functions

akin to those of a municipality (paragraph 23). The judgment

went on to find that the Labour Relations Act prevailed over

the Municipal Systems Act in employment matters, and that

section 197 was not in conflict with sections 152 and 160 of the

Constitution (paragraphs 30 and 31). The judgment of the

Constitutional Court, whilst providing further clarity on the

interaction between national legislation, interpreted in

accordance with the Constitutional principles, did not establish

any new legal principle not previously traversed.

4.6. In Coughlan NO v Road Accident Fund 2015 [ZACC] 10 the

candidate wrote the unanimous judgment for the Constitutional

Court. The SCA had found on appeal that foster child grants

were not res inter alios acta in the case of a child’s loss of

support claim against the Road Accident Fund (RAF), and that

these grants were consequence of the death of the parent, but

for which the foster parents would not have claimed the grants

(paragraph 19). The candidate’s judgment pointed out that the

36


Court’s answer to the legal question would lay down a general

principle applicable to children who had a claim for loss of

support arising from the death of a parent, and who are placed

under foster care including a foster child grant (paragraph 25).

This general principle was not considered by the SCA.

4.7. The candidate commenced her analysis into whether double

compensation would arise by addressing the state’s

constitutional obligation in terms of sections 27 and 28 of the

Constitution to children in need of care, leading to an analysis

of the nature and purpose of foster child grants (paragraph 33).

After a careful analysis the candidate found that an award for

damages for loss of support was no substitute for foster

parenting and that there was no basis to deprive a child of

compensation for loss of support because they are in foster care

(paragraph 44). The judgment is a welcome addition to the

Constitutional jurisprudence on this topic.

4.8. The judgment in Coughlan demonstrates that the candidate

does have an appreciation for the constitutional grundnorms

against which national legislation falls to be interpreted. But

apart from the two Constitutional Court judgments referenced

by the candidate, she has not written any judgments in the SCA

which give any sense of a wider expertise in the application of

constitutional principles.

4.9. It is, of course, noted that the newly expanded jurisdiction of

the Constitutional Court provides that the Court sit as an apex

court in relation to all matters of law of general public import.

37


The Court’s jurisdiction is thus no longer strictly limited to

constitutional matters. It follows that the consideration of the

candidate’s appreciation of matters of a constitutional nature is

not the only determining factor in her application to that Court.


5.1. No information is available to indicate that the candidate is not

committed to the values of the Constitution.


6.1. Seven judgments written by the candidate that has been taken

on appeal were found. Of these seven, five have been

overturned on appeal and two have been upheld on appeal. The

candidate has also written one CCMA award that has been

successfully reviewed by the Labour Court.


experience

7.1. The candidate practised as an attorney specialising in Labour

Law and has served as a commissioner at the CCMA. Since her

appointment as a judge, she has served in the South Gauteng

High Court, Johannesburg, the Competition Appeal Court and

the Supreme Court of Appeal. She has furthermore served as an

acting judge in the Constitutional Court. She has heard matters

covering a wide spectrum of the law. She has primarily written

judgments in Criminal Law matters (totalling 44% of the

38


candidate’s written judgments). She has written only two

Constitutional Judgments.


8.1. The judgments of the candidate are clearly written and well-

reasoned. They evidence a command of the written language as

well as an acceptable understanding of the applicable legal

principles.


9.1. The candidate produces judgments promptly; the evidence

suggests a turnaround of approximately one month from the

date of hearing.


10.1. No negative remarks have been received in this regard.


11.1. In the sample of cases heard and judgments produced by the

candidate, she has never written a minority judgment. She has,

in 81% of the cases she has heard, concurred with the majority

judgment. In 19% of the cases heard she has written a

judgment.


12.1. No negative comments have been received in this regard.

39



13.1. The candidate’s involvement in the organised profession as an

attorney, as a senior partner and as a member of a number of

community organisations indicates that she has sufficient

administrative skills to suit the position for which she is

applying.


14.1. No negative comments have been received in this regard.


15.1. The candidate seems to be able to manage court proceedings

well and treats all parties fairly. No negative comments have

been received in this regard.



16.1. The candidate has been involved in numerous community

organisations. Her judgments indicate sensitivity towards

human rights and the importance thereof in a developing

democracy.


17.1. The candidate has, at this stage, reached the height of her

judicial career and has fulfilled her potential.

40



community at large

18.1. The appointment of the candidate will address the gender

imbalance in the Constitutional Court. Her disinclination to

write judgments is a concern and does not give an adequate

indication of independent thinking and productive capacity,

such as to deserve appointment to the highest court of the

country.

41



Reported decisions:Booysen v S 2011 (1) SACR 448 (SCA) CEO of the South African Social Security Agency N.O and Other v Cash

Paymaster Services (Pty) Ltd [2011] 3 All SA 233 (SCA)Chretien and Another v Bell [2010] 2 All SA 428 (SCA) Commissioner for the South African Revenue Services and Others v

Moresport (Pty) Ltd and Others [2009] 4 All SA 198 (SCA) Fletcher and Another v S [2010] 2 All SA 205 (SCA) Minister of Safety and Security v Van Der Walt and Another [2015] 1 All

SA 658 (SCA)Porritt and Another v National Director of Public Prosecutions and

Others [2015] 1 All SA 169 (SCA); 2015 (1) SACR 533 (SCA)Van der Watt v S [2010] 3 All SA 434 (SCA)

Unreported decisions:Aberdeen International Incorporated v Simmer and Jack Mines Ltd

(273/09) [2010] Biyela v S (859/10) [2011] City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd

and Others (CCT133/14) [2015] Commissioner for South African Revenue Service v Saira Essa

Productions (Pty) Ltd and Others (162/10) [2010] Grigor v S (607/11) [2012]Grove v The Road Accident Fund (74/10) [2011] Herman v S (948/12) [2013]Mahlase v S (255/13) [2013]

CANDIDATE: JUDGE LV THERON




1.1. The candidate holds the following degrees:

1.1.1. BA (1987) (Natal);

1.1.2. LLB (1989) (Natal); and

1.1.3. LLM (1990) (Georgetown).

1.2. The candidate is currently a Judge of the Supreme Court of

Appeal.



2.1. The candidate was an Advocate of the High Court from

December 1991 until her appointment as a Judge of the High

Court in October 1999. The candidate was an Acting Judge of

the Supreme Court of Appeal from May 2006 to June 2007 and

December 2009 to March 2010. She received permanent

appointment to the SCA in December 2010. The candidate has

recently served as an Acting Judge of the Constitutional Court

from February to May 2015.

2.2. The candidate is nominated by the Centre for Applied Legal

Studies, Sonke Gender Justice, the South African Chapter of

the International Association of Women Judges, and Advocates

for Transformation (KZN). All nominations speak highly of the

candidate and her judicial record.

2.3. No adverse comments have been received.

2.4. The candidate is a fit and proper person.













judiciary.

3.4. Of particular relevance, the candidate is a coloured woman, a

group which is particularly poorly represented on the bench.

3.5. In its nomination, Advocates for Transformation (KZN)

remarks that the candidate comes from humble origins, having

grown up in a township outside Durban. She was the first of her

family to obtain a Matric and to go on to university. During her

schooling and studies, she worked as a part-time cashier in a

branch of OK Bazaars. She was appointed as a Judge of the

High Court at the age of 32, making her one of the youngest

judicial appointees and the first black woman to be appointed to

the KwaZulu-Natal bench. The candidate is also a mother of

four children.

3.6. The candidate’s appointment would help to reflect the gender

and racial composition of South Africa. Her life experiences

would also contribute a unique perspective to the Constitutional

Court’s decision-making.


law

4.1. We have found 23 reported judgments in mainstream law

reports which were authored or co-authored by the candidate.

Of these, 13 are judgments of the SCA and 10 are judgments of

the High Court. We have located a further 23 unreported

judgments which are available online. The candidate does not

appear to have produced any reported judgments in her first

five years on the bench. However, the number, frequency and

quality of her reported decisions have increased significantly

over the last decade.

4.2. The candidate’s judgments cover a wide range of subjects,

including commercial law, insolvency, civil procedure,

criminal law, administrative law, and human rights.

4.3. The candidate lists the following reported judgments as her

most significant to date:

4.3.1. Nkomo v S [2007] 3 All SA 596 (SCA);

4.3.2. Gumede v President of RSA & others (Women’s Legal

Centre as amicus curiae) [2008] JOL 21972 (D);

4.3.3. Occupiers, Shulana Court, 11 Hendon Road, Yeoville v

Steele 2010 (4) All SA 54 (SCA);

4.3.4. Moseme Road Construction CC & others v King Civil

Engineering Contractors & another 2010 (4) SA 359

(SCA);

4.3.5. Guardrisk Insurance Company v Kentz [2014] 1 All SA

307 (SCA);

4.3.6. Quartermark Investments (Pty) Ltd v Mkwanazi & another

2014 (3) SA 96 (SCA);

4.3.7. Gainsford & others NNO v Tanzer Transport (Pty) Ltd

2014 (3) SA 468 (SCA);

4.3.8. Minister for Safety and Security v Scott & another 2014

(6) SA 1 (SCA);

4.3.9. Fischer & another v Ramahlele & others 2014 (4) SA 614

(SCA);

4.3.10. Royal Sechaba Holdings (Pty) Ltd v Coote 2014 (5) SA

562 (SCA).

4.4. Nkomo v S [2007] 3 All SA 596 (SCA) concerned an appeal

against a sentence of life imprisonment for rape and

kidnapping. The appellant raped the complainant five times

while he held her captive overnight. The High Court sentenced

the appellant to life imprisonment, having found no substantial

and compelling circumstances warranting a sentence less than

the prescribed minimum of life imprisonment. On appeal in the

SCA, the majority reduced the sentence to sixteen years,

holding that the fact that the appellant was a first offender and

had prospects of rehabilitation constituted substantial and

compelling circumstances justifying a departure from the

minimum sentence regime. The candidate dissented. Noting the

brutality of the rape and the prevalence of sexual violence in

South Africa, she concluded: “I cannot agree ‘that the prospect

of rehabilitation [of which there is no evidence] and the fact

that the appellant is a first offender’ constitute substantial and

compelling circumstances within the meaning of that

expression and are truly convincing reasons for departing from

the minimum sentence ordained by the Legislature.”

4.5. In Gumede v President of the Republic of South Africa & others

(Women’s Legal Centre as amicus curiae) [2008] JOL 21972

(D) the candidate declared legislation preserving the marital

power of husbands in customary marriages concluded before

the commencement of the Recognition of Customary Marriages

Act to be unfairly discriminatory. Section 7(1) of the

Recognition Act provided that the proprietary consequences of

marriages concluded before the Act came into force were to be

governed by customary law. Provincial legislation codifying

Zulu customary law retained the marital power, providing that

the husband was head of the family and the exclusive owner of

all family property. The combined effect of this legislation was

that women in pre-Recognition Act customary marriages,

subject to Zulu customary law, would potentially have no share

of the family property on divorce. The candidate held that the

relevant provisions unfairly discriminated on the basis of

gender and race. The declaration of invalidity was confirmed

by the Constitutional Court in Gumede v President of the

Republic of South Africa & others 2009 (3) SA 152 (CC).

4.6. In Occupiers, Shulana Court, 11 Hendon Road, Yeoville,

Johannesburg v Steele 2010 (4) All SA 54 (SCA) the candidate

affirmed that courts hearing eviction applications governed by

PIE must be proactive in securing “all relevant information”

required to make just and equitable decisions. The lower court

granted an eviction order by default after the occupiers failed to

appear in court. Their application for rescission of the default

judgment was refused. In a unanimous judgment of the SCA,

the candidate upheld the occupiers’ appeal and granted them

leave to oppose the eviction application. The candidate’s

judgment emphasised that, in the absence of the affected

occupiers, the court still had a duty to satisfy itself that the

eviction would be just and equitable. This required the court, at

the very least, to determine whether vulnerable people would

be affected by the eviction and whether there was alternative

accommodation available.

4.7. In Moseme Road Construction CC & others v King Civil

Engineering Contractors & another 2010 (4) SA 359 (SCA) the

SCA upheld a decision of the Gauteng Department of Public

Transport, Roads and Works to award a tender to the

appellants. The candidate concurred with the main judgment on

the merits, but did not agree with the costs order. She held that

the Department should be ordered to pay the costs of both the

respondents and the appellants as it was the Department’s

negligence and unjustified disqualification of the respondents

that led to the respondents approaching the High Court in the

first place.

4.8. The candidate’s judgment in Guardrisk Insurance Company v

Kentz [2014] 1 All SA 307 (SCA) clarified the nature and legal

consequences of performance guarantees. Having regard to a

long line of South African and English case law, the candidate

held that a bank faced with a valid demand in respect of a

performance guarantee is obliged to pay the beneficiary without

investigation of the contractual position between the

beneficiary and the principal debtor. The only exception is

where fraud has been established. The very purpose of the

guarantee is to ensure that the beneficiary can obtain payment

without having to wait for the final determination of its rights

in terms of accessory obligations. To find otherwise, the

candidate held, would defeat the commercial purpose of

performance guarantees.

4.9. Quartermark Investments (Pty) Ltd v Mkwanazi & another

2014 (3) SA 96 (SCA) addressed the legal principles and

remedies applicable to fraudulent misrepresentation inducing

the sale and transfer of immoveable property. The first

respondent instituted application proceedings against the

appellant, a property investment company, claiming that it had

fraudulently induced her into signing certain sale and lease

agreements in respect of her immovable property. The lower

court granted an order setting aside the transfer of the property;

declaring the sale agreements that led to the transfer null and

void; and directing that the second respondent (Registrar of

Deeds) transfer the property back to the first respondent. In the

SCA, the candidate dismissed the appeal with costs. In doing

so, the candidate applied the relevant principles on fraudulent

misrepresentation inducing a contract. She also held that the

High Court’s remedy was better characterised as vindicatory

relief rather than restitution.

4.10. The candidate’s decision in Gainsford & others NNO v Tanzer

Transport (Pty) Ltd 2014 (3) SA 468 (SCA) provides guidance

on the citation and standing of liquidators litigating on behalf of

a company in liquidation. Lower courts had adopted two

divergent approaches: some required litigation to be brought in

the name of the company in liquidation while others permitted

liquidators to sue in their capacity as liquidators. The candidate

held that these approaches reflected “a distinction without a

difference”. Both are permissible and do not affect the

liquidators’ standing to sue on behalf of the company in

liquidation.

4.11. Minister for Safety and Security v Scott & another 2014 (6) SA

1 (SCA) concerned a delictual claim for damages based on

unlawful arrest and interference in a contractual relationship.

The respondents entered into a lucrative contract with an

American hunting and fishing magazine. After the first

respondent’s arrest on an unrelated charge, the magazine

cancelled the contract. The respondents claimed general

damages for the unlawful arrest and special damages for the

loss of the contract. The High Court upheld these claims and

awarded damages of R43 million. On appeal in the SCA, the

candidate held that a claim based on interference with a

contractual relationship has historically required proof of intent.

The candidate indicated that even if negligence suffices for

such a claim, the elements of wrongfulness and legal causation

had not been established. As a result, the lower court’s award

of special damages was set aside. The candidate also set aside

the award of general damages and replaced it with a reduced

amount.

4.12. Fischer & another v Ramahlele & others 2014 (4) SA 614

(SCA) articulates the principles governing a court’s power to

raise and decide matters of its own accord. In January 2014, the

City of Cape Town demolished certain structures erected on the

property of Mrs Fischer. Mrs Fischer and the City launched an

urgent application seeking an interdict restraining a group of

persons from seeking to occupy or erect structures on the

property. The return date was anticipated by Mr Ramahlele and

40 other people, who opposed the confirmation of the rule nisi.

They in turn launched a counter-application against the City, in

which they alleged that they had been in peaceful and

undisturbed possession of the structures which they had erected

on the property and that the demolished structures were their

homes. The High Court granted declaratory relief and

mandatory interdicts against the City in the counter-application,

substantially in the form sought. In doing so, the court decided

issues not identified by the parties as relevant to their dispute

and did not hear evidence on the issues that the parties

considered determinative of the matter. In the SCA, the

candidate co-authored a unanimous judgment with Wallis JA,

holding that the only dispute was a factual one of whether the

structures were unoccupied and vacant on the dates in question.

It was not open to the lower court to raise new issues and

compel the parties to deal with them. The appeal was upheld.

4.13. In Royal Sechaba Holdings (Pty) Ltd v Coote 2014 (5) SA 562

(SCA) the parties had concluded arbitration proceedings. The

appellant then sued the respondents for breach of fiduciary duty

in the High Court. The respondents raised a special plea of

issue estoppel, which was upheld by the High Court. In the

SCA, the applicant, with the concurrence of four other judges,

dismissed the appeal. The candidate’s judgment offers a helpful

restatement of the requirements for successful pleas of res

judicata and issue estoppel.

4.14. In addition to the judgments considered above, the candidate’s

knowledge of constitutional law is further demonstrated in her

decisions which have been substantially confirmed or upheld

on appeal by the Constitutional Court. These judgments

include:

4.14.1. Gumede (discussed above);

4.14.2. Shinga v S [2007] 1 All SA 113 (N);

4.14.3. eThekwini Municipality v Haffejee [2010] 2 All SA 358

(KZD);

4.14.4. Industrial Development Corporation of South Africa Ltd v

PFE International & others 2012 (2) SA 269 (SCA); and

4.14.5. Head of Department, Department of Education, Free State

Province v Welkom High School 2012 (6) SA 525 (SCA).

4.15. The candidate’s declarations of constitutional invalidity in

Shinga v S [2007] 1 All SA 113 (N) were partially confirmed

and partially set aside in the Constitutional Court’s decision in

S v Shinga (Society of Advocates (Pietermaritzburg) as Amicus

Curiae); S v O'Connell and Others 2007 (2) SACR 28 (CC). At

issue were various provisions of the Criminal Procedure Act

regulating criminal appeals from magistrates’ courts. The

candidate, writing for a unanimous full bench, held that the

provisions were unconstitutional in two respects: first, that they

allowed appeals to be determined behind closed doors and,

second, that there was no general, automatic right of appeal to

the High Court. The Constitutional Court confirmed the first

order of invalidity but set aside the second. The Court held that

it was not unconstitutional to require convicted offenders to

obtain leave to appeal from the trial court. Nevertheless, the

Court held that some of the features of the appeals process were

unconstitutional. While the candidate’s judgment was only

partially confirmed, her judgment demonstrates a strong

commitment to principles of open justice and a sound

understanding of the Constitutional Court’s jurisprudence on

fair trial rights.

4.16. eThekwini Municipality & others v Haffejee NO & others

[2010] 2 All SA 358 (KZD) concerned, among other issues,

whether section 25(2)(b) of the Constitution contains a strict

requirement that compensation must be determined prior to the

expropriation of property. The candidate, sitting as a single

judge, held that on a plain and purposive reading of section

25(2)(b) it does not require prior determination of

compensation. The Constitutional Court agreed with the

candidate’s interpretation and dismissed the appeal, albeit for

different reasons. This decision is reported as Haffejee NO &

others v eThekwini Municipality & others 2011 (6) SA 134

(CC).

4.17. Industrial Development Corporation of South Africa Ltd v PFE

International & others 2012 (2) SA 269 (SCA) considered

whether PAIA can be used to obtain information from a party

for the purposes of ongoing litigation not involving that party.

Section 7 of PAIA provides that its provisions do not apply

where there is ongoing litigation and where “other law”

provides for the production of or access to the information

being sought. Writing for a unanimous court, the candidate held

that Rule 38(1) of the Uniform Rules, which provides for a

subpoena duces tecum to acquire information from parties not

participating in the litigation, constitutes “other law”. As a

result, PAIA was not applicable in these circumstances. In

reaching this conclusion, the candidate clarified the meaning

and scope of section 7 of PAIA and Rule 38(1). This judgment

was upheld on appeal in the Constitutional Court, which

endorsed the candidate’s reasoning.

4.18. The central question in Head of Department, Department of

Education, Free State Province v Welkom High School 2012

(6) SA 525 (SCA) was whether a head of department (HOD) of

a provincial department of education has the authority to

instruct a school principal to disregard the requirements of a

school pregnancy policy which the HOD considers to be

unfairly discriminatory. The candidate wrote a unanimous

judgment on behalf of four other judges of the SCA holding

that the HOD is not legally empowered to do so. Instead, the

HOD was required to approach a court to have the policies

reviewed and set aside. The candidate held that it was not

necessary or appropriate to determine whether the pregnancy

policies were constitutional as the issue was not properly before

the Court. The Constitutional Court upheld this decision on

appeal in Head of Department, Department of Education, Free

State Province v Welkom High School 2014 (2) SA 228 (CC).

While the Constitutional Court agreed that it was not

appropriate to decide the constitutionality of the pregnancy

policies without proper argument, Khampepe J, writing for the

majority, held that the pregnancy policies were prima facie

unconstitutional and necessitated a just and equitable order. As

a consequence, the Constitutional Court ordered the schools to

review their pregnancy policies and to report back to the Court.

4.19. These judgments demonstrate good knowledge of constitutional

law and an ability to negotiate difficult constitutional issues.

Having said that, the Welkom High case is an example of a

case where the candidate chose to avoid dealing with the effect

of a policy on the rights of pregnant teenage learners where it

was undisputed that the policy operated unduly harshly on

female learners and impacted on their ability to receive and

often complete their education.

4.20. While the Constitutional Court has not always adopted the

reasoning in the candidate’s judgments, her reasoning is clear

and well explained, providing a helpful guide to the

Constitutional Court in deciding these matters.


5.1. The candidate’s judgments demonstrate a strong commitment

to constitutional values.

5.2. In particular, the candidate has a proven commitment to

promoting gender equality. All three nominations refer to the

candidate’s decisions in Nkomo and Gumede as evidence of this

commitment. In Nkomo, the candidate showed acute sensitivity

to the need to address sexual violence in society. The

candidate’s decision in Gumede reflects a firm grasp of the

Constitutional Court’s unfair discrimination jurisprudence. Her

decision is also notable for its engagement with the provisions

of the Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW).

5.3. The candidate’s article, ‘Gender Equality: A South African

Perspective’ (2007) 17 Commonwealth Judicial Journal 4-9,

reflects her understanding of the patterns of disadvantage

experienced by women in South Africa. The candidate offers a

moving account of her own experiences of gender and racial

inequality and relates these experiences to the broader

challenges of transforming the legal profession in South Africa.

5.4. The candidate’s commitment to constitutional values is evident

in her roles in various professional bodies. As an advocate, she

was an active member of AFT and NADEL. She is a founding

member of the South African Chapter of the International

Association of Women Judges (SAC-IAWJ). The President of

the SAC-IAWJ remarks that the candidate has played an active

role in mentoring other women judicial officers.

5.5. In SH v GF 2013 (6) SA 621 (SCA), the candidate concurred in

an unanimous judgment of the Supreme Court of Appeal

concerning maintenance. The appellant, a divorced mother

seeking to recover maintenance for her two minor children

from the recalcitrant father, succeeded in the court a quo in

demonstrating that the respondent was in breach of a

maintenance order and obtained an order against the respondent

for contempt of court together with a sanction against the

respondent. The appellant was dissatisfied with the

appropriateness of the sanction as it did not effectively advance

the on-going obligations of the respondent to pay maintenance.

5.6. The SCA agreed that that the respondent was in contempt but

declined to interfere in the Court a quo’s exercise of its

discretion in determining the appropriate sanction. The effect

of the judgment was to require the appellant to approach the

Maintenance Court for a determination for appropriate

remedies. A criticism of the judgment has been that the SCA

ought to have fashioned such remedies itself, in the interests of

assisting women and children effectively.

5.7. We suggest that these concerns be raised with the candidate,

perhaps as part of a broader line of questioning on the duties of

appellate courts to take a proactive approach to fashioning

remedies that address issues of gender. The candidate’s

judgments in the Welkom High case, discussed above, would be

relevant to this line of questioning as that decision also

indicates some reluctance to take a proactive approach in

formulating innovative and effective remedies.


6.1. The candidate lists three judgments which were overturned on

appeal. One of these is cited in her application simply as

“Durban Bus Company”. We have been unable to find a

judgment matching this description. We have identified a

further four judgments which were subsequently overturned on

appeal and are not mentioned in the candidate’s application.

6.2. In S v Cameron 2005 (2) SACR 179 (SCA) the SCA

overturned a decision reached by the candidate and another

judge in a criminal review. It is unclear whether the candidate

was the author of the judgment. The magistrate’s court found

the appellant guilty of possessing undersized crayfish, an

offence under marine protection regulations. On review, the

lower court upheld the conviction but reduced the sentence.

The SCA held that the offence of possession included the

requirement that the accused must have intended to control the

crayfish for personal gain or benefit. This intention had not

been proved.

6.3. BOE Bank Ltd t/a BOE Corporate v The Grange Timber

Farming Co (Pty) Ltd & others [2006] JOL 17279 (N) turned

on the interpretation of a clause in a loan agreement. The

candidate, sitting as a single judge, interpreted the clause in

favour of the respondent. The SCA disagreed with this

interpretation and upheld the appeal. No adverse comments

were made about the candidate or her reasoning.

6.4. In Inventive Labour Structuring (Pty) Ltd v Corfe 2006 (3) SA

107 (SCA) the SCA overturned the candidate's decision as a

single judge in the High Court. The candidate had dismissed an

application for the rectification of a suretyship agreement and

default judgment on the basis of the agreement. We have not

been able to locate the candidate's judgment. On appeal, the

SCA held that a proper case had been made for the rectification

of the agreement and it consequently awarded default

judgment. No adverse comments were made about the

candidate's reasoning or conduct.

6.5. De Gree v Webb (Centre for Child Law as Amicus Curiae)

2007 (5) SA 184 (SCA) considered the procedures and legal

principles governing inter-country adoptions. The applicants,

US citizens, applied to the High Court for an order granting

them sole custody and guardianship over an abandoned baby,

with a view to launching adoption proceedings in the US. The

High Court refused the application on the ground that only the

Children’s Court is empowered to grant adoption orders. The

SCA split three to two, with the majority dismissing the appeal.

The candidate wrote the majority judgment, holding that the

Children’s Court has exclusive jurisdiction to consider the

application. She further held that the principle of “subsidiarity”

under the UN Convention on the Rights of the Child must be

strictly applied, requiring that inter-country adoptions can only

be allowed if the child cannot be adequately cared for in her

country of origin. The candidate held that the applicants had

not presented evidence to show that the subsidiarity principle

had been satisfied and dismissed their application. On appeal,

the Constitutional Court overturned the candidate’s decision in

part. While it ultimately referred the matter back to the

Children’s Court, it held that the High Court does have

jurisdiction in exceptional cases to grant orders of sole custody

and guardianship even where this is intended to facilitate inter-

country adoptions. Furthermore, the Court held that the

principle of subsidiarity did not bar the applicants from

obtaining an adoption order. The Court held that the best

interests of the child remain the primary concern. The

Constitutional Court’s decision is reported as AD & Another v

DW & Others (Centre for Child Law as Amicus Curiae;

Department for Social Development as Intervening Party) 2008

(3) SA 183 (CC). While the candidate’s decision was

overturned in part, this does not reflect a lack of commitment to

constitutional values. The issues were difficult and contested,

as evident in the split in the SCA. The candidate’s judgment

was reasoned and showed clear appreciation of the best

interests of the child. Moreover, circumstances had changed

considerably by the time that the matter was decided on appeal

in the Constitutional Court, as the parties had concluded a

settlement agreement.

6.6. In S v Dube & others 2010 (1) SACR 65 (KZP) a full bench

overturned convictions and sentences handed down by the

candidate, sitting with two assessors. A criminal gang's attempt

to break into a bank had been foiled by the police and one of

the gang members was shot and killed by a policeman in the

attempted escape. The deceased gang member had threatened

the policeman with a crowbar. The candidate found the

surviving gang members guilty of the murder of their fellow

gang member and the attempted murder of the policeman on

the basis of common purpose. On appeal, the full bench

criticised the candidate for conflating subjective foresight of the

risk of apprehension with foresight that one of the gang

members would threaten the police and be killed as a result.

The full bench held that the evidence did not support the

inference that the gang members had the subjective foresight

required to establish common purpose. The full bench also

lowered the sentences on the remaining conviction of

housebreaking and attempted theft to take into account the two

and half years that the appellants had spent awaiting trial.

6.7. In S v Xaba 2011 (2) SACR 1 (KZP), a full bench overturned

the sentences imposed by the candidate in a case of rape and

murder. The appellant, who was 17 years old at the time of the

offence, was found guilty of four counts of rape and one count

of murder. The candidate considered herself bound by the

minimum sentence regime and sentenced the appellant to life

imprisonment on each count. In light of the Constitutional

Court’s decision in Centre for Child Law v Minister of Justice

and Constitutional Development, the full bench held that the

candidate erred in finding that minimum sentences applied to

offenders under the age of 18 at the time of the offence. The

appeal against the sentence succeeded and the term of

imprisonment was reduced.


experience

7.1. The candidate has significant judicial experience, having served

as a judge for more than 15 years. Prior to her judicial

appointment, the candidate was an Advocate of the High Court

from 1991 to 1999.

7.2. The breadth of the candidate’s professional experience is

evident in the range of roles she performed before and during

her time at the Bar, including:

7.2.1. Part-time cashier at OK Bazaars for a period of eight

years;

7.2.2. Part-time lecturer at UKZN and Mangosuthu Technikon in

the late 1980s and early 1990s;

7.2.3. Intern at the ILO and the Occupational Safety and Health

Law Centre in the United States;

7.2.4. Provincial Adjudication Secretary of the IEC in 1994; and

7.2.5. Commissioner of the Judge White Commission from 1995

to 1997.


8.1. The candidate’s judgments are in English and she is clearly

proficient in the language. Her judgments are generally concise

and well written.

8.2. Her proficiency in other languages is unknown.


9.1. In the sample of judgments that we have considered, the

candidate has averaged approximately two to three months to

produce a judgment.

9.2. As a Judge of the High Court, it appears that the candidate

produced at least five judgments more than six months after the

hearing. These judgments include:

9.2.1. Shinga v S: 230 days to produce a 17 page judgment.

9.2.2. Gumede: 190 days to produce a judgment of 17

paragraphs.

9.2.3. Legal Aid Board & Others v Singh 2009 (1) SA 184 (N):

203 days to produce a judgment of 11 paragraphs.

9.2.4. TWK Agriculture Ltd v NCT Forestry Co-operative &

others 2006 (6) SA 20 (N): 193 days.

9.2.5. Mostert v S [2006] 4 All SA 83 (N): 194 days.

9.3. The candidate’s record in producing judgments promptly has

improved considerably in her time on the SCA. It appears that

she has averaged approximately two to three weeks between

the date of hearing and the date of judgment.


10.1. Our review of the candidate’s judgments gives no reason to

doubt her fairness and impartiality.

10.2. The candidate’s judgment in Occupiers, Shulana Court –

affirming the duty of courts to be proactive in protecting the

interests of vulnerable people in eviction applications –

demonstrates this commitment to fairness.



11.1. The candidate’s independent mindedness is evident in her

dissenting judgments in the SCA:

11.2. In Nkomo, discussed above, the candidate strongly disagreed

with the majority’s approach to the sentencing of a convicted

rapist, as she held that his status as a first time offender and

speculation about his capacity for rehabilitation did not warrant

a departure from the minimum sentence of life imprisonment.

11.3. In Moseme, the candidate disagreed with the costs order

awarded by the majority in a tender dispute, holding that the

state ought to have paid the parties’ costs.

11.4. The candidate’s majority SCA decision in De Gree v Webb, in

a narrow three-to-two split, also shows an ability to produce

majority decisions in the face of forceful dissenting views.



12.1. The candidate has served as a judge for more than 15 years,

presiding over judicial proceedings in a number of different

courts.

12.2. There is no reason to doubt her ability to conduct court

proceedings.


13.1. The candidate’s administrative ability is evident from the

positions of responsibility that she has held and continues to

hold in various organisations.

13.2. In addition to her extensive professional experience described

above, the candidate sits on a number of civil society and

professional committees and boards. These include the board of

trustees of the Commonwealth Judicial Education Institute and

African Monitor; various positions of responsibility in the

Anglican Church of South Africa, including her current

position as Deputy Provincial Chancellor of the Church; and

her role as Chairperson of the High Court Sub-Committee of

the Rules Board.



14.1. There is nothing on record that gives reason to doubt the

candidate’s integrity and ethical behaviour.



15.1. No concerns appear from the judgments we have considered.




16.1. The candidate’s commitment to human rights is evident from

the judgments discussed above.

16.2. The candidate’s work with various civil society and legal

organisations is further indication of this commitment. As a

student she served as secretary of her university’s Law Clinic,

offering free legal services to the indigent. Her work for the

Community Law Centre involved providing human rights

education to members of vulnerable communities. She was

also exposed to international human rights law through her

LLM at Georgetown and her work for the International Labour

Organisation.

16.3. Notably, in her role as Vice-President of Programmes for the

SAC-IAWJ the candidate succeeded in having World Aids Day

commemorated for the first time on the steps of the High Court

in Durban and Pietermaritzburg.

16.4. The candidate has received numerous awards for her

contributions to the legal profession and the community,

including the Department of Justice Woman Achiever of the

Year Award in 2000 and the KZN SAC-IAWJ Award for

Contributions to Society and Achievements in the Legal

Profession.

16.5. Her life experience suggests a strong appreciation of the values

and needs of the community. In her article, ‘Gender Equality: A

South African perspective’, the candidate relates these

experiences:

“Under the apartheid regime I was classified as

‘coloured’ … I went to a school with other coloured

children. I lived in a coloured township. I was born to a

poor coloured family. Both my parents had not completed

high school. Not many black people from my parents’ era

completed high school. That was not because they were

poor academically; it was forced upon them through

economic circumstances, as their parents could not afford

to keep them at school. Once they reached the age of 16,

they had to leave school and find employment to help

support the family financially. ... Growing up as a young

child, I didn’t know what it was to have running water or

a bathroom in our house until I was about 13. ... I was

fortunate to receive a bursary as well as a loan from the

bank to help towards my studies. From the age of 16, I

worked every school and university holiday in order to

pay for my university expenses. When I got to university, I

had three part-time jobs. Over the weekends I worked as a

cashier with my mother. In the evenings I worked at the

law library at the university and during my free time in the

day I would tutor other students. And I can tell you I have

not stopped working. I found that I always had to work

twice as hard as my male counterparts, by reason of my

youth, my gender and my race.” (pp 5 - 6)


17.1. The candidate has potential to contribute valuable experience,

both professional and personal, to the Constitutional Court.

17.2. Her fifteen years’ experience as a judge and her proven ability

in different areas of law would make a helpful contribution to

the Court, particularly in light of its expanded jurisdiction and

increased workload.

17.3. The improvements in the speed and quality of the candidate’s

judgments during her time on the SCA are further indication of

her potential.


community at large

18.1. The candidate’s appointment would demonstrate a commitment

to improving gender representation on the Constitutional Court

and in the judiciary as a whole.

18.2. The candidate’s unquestionable experience would also send the

clear message that gender transformation and merit are not in

tension.


Reported decisionsTWK Agriculture Ltd v NCT Forestry Co-operative & others 2006 (6) SA

20 (N)Mostert v S [2006] 4 All SA 83 (N)Shinga v S [2007] 1 All SA 113 (N)Nkomo v S [2007] 3 All SA 596 (SCA)De Gree v Webb (Centre for Child Law as Amicus Curiae) 2007 (5) SA

184 (SCA)Legal Aid Board & Others v Singh 2009 (1) SA 184 (N)eThekwini Municipality & others v Haffejee NO & others [2010] 2 All

SA 358 (KZD)Occupiers, Shulana Court, 11 Hendon Road, Yeoville v Steele 2010 (4)

All SA 54 (SCA)Moseme Road Construction CC & others v King Civil Engineering

Contractors & another 2010 (4) SA 359 (SCA)eThekwini Municipality v Haffejee [2010] 2 All SA 358 (KZD)Head of Department, Department of Education, Free State Province v

Welkom High School 2012 (6) SA 525 (SCA)Industrial Development Corporation v PFE International 2012 (2) SA

269 (SCA)Guardrisk Insurance Company v Kentz [2014] 1 All SA 307 (SCA)Quartermark Investments (Pty) Ltd v Mkwanazi & another 2014 (3) SA

96 (SCA)Gainsford & others NNO v Tanzer Transport (Pty) Ltd 2014 (3) SA 468

(SCA)Minister for Safety and Security v Scott & another 2014 (6) SA 1 (SCA)Fischer & another v Ramahlele & others 2014 (4) SA 614 (SCA)Royal Sechaba Holdings (Pty) Ltd v Coote 2014 (5) SA 562 (SCA)SH v GF 2013 (6) SA 621 (SCA)

Unreported decisionsBOE Bank Ltd t/a BOE Corporate v The Grange Timber Farming Co

(Pty) Ltd & others [2006] JOL 17279 (N)Gumede v President of RSA & others (Women’s Legal Centre as amicus

curiae) [2008] JOL 21972 (D)

Judgments upheld on appealS v Shinga (Society of Advocates (Pietermaritzburg) as Amicus Curiae); S

v O'Connell and Others 2007 (2) SACR 28 (CC)Gumede v President of the Republic of South Africa & others 2009 (3)

SA 152 (CC)Haffejee NO & others v eThekwini Municipality & others 2011 (6) SA

134 (CC)PFE International & others v Industrial Development Corporation of

South Africa Ltd 2013 (1) SA 1 (CC)Head of Department, Department of Education, Free State Province v

Welkom High School 2014 (2) SA 228 (CC)

Judgments overturned on appealS v Cameron 2005 (2) SACR 179 (SCA) Inventive Labour Structuring (Pty) Ltd v Corfe 2006 (3) SA 107 (SCA)BOE Bank v Grange Timber Farming Co (Pty) Ltd [2007] ZASCA 4

(Unreported)AD & Another v DW & Others (Centre for Child Law as Amicus Curiae;

Department for Social Development as Intervening Party) 2008 (3) SA 183 (CC)

S v Dube & others 2010 (1) SACR 65 (KZP)S v Xaba 2011 (2) SACR 1 (KZP)

71

CANDIDATE: JUDGE NZ MHLANTLA

CANDIDATE: JUDGE N MHLANTLA


CONSITUTIONAL COURT


1.1. The candidate holds the following degree:

1.1.1. BProc.

1.2. The candidate has served as an Acting Judge and Judge of the

Provincial Division of the High Court for approximately six

years.

1.3. The candidate has served as an Acting Judge of Appeal and

Judge of Appeal of the Competition Appeal Court for four

years.

1.4. The candidate has served as an Acting Judge of Appeal and

Judge of Appeal of the Supreme Court of Appeal for about

seven years.

1.5. The candidate has served as an Acting Judge of the

Constitutional Court for one year.


72



2.1. The candidate has been a judicial officer for a cumulative

period of thirteen years.

2.2. No adverse reports have been received.

2.3. She is a fit and proper person.













judiciary.


law

73


4.1. The areas of law traversed by the candidate’s judgements are

broad. The reviewed judgments include constitutional law,

criminal law, competition law, civil procedure, interpretation of

statutes and contracts, the evaluation of evidence and a broad

range of private law topics.

4.2. In Grancy Property Limited and Another v Seena Marena

Investment (Pty) Ltd and Others [2014] 3 All SA 123 the

candidate was called upon to determine principles relating to

the manner of the debatement of an account, a novel question in

the law. Having reviewed the guiding cases on the subject, the

candidate displayed a facility for the fashioning of new

remedies.

4.3. The candidate has delivered a number of judgments while

sitting as an acting Judge of the Constitutional Court. In those

judgments she demonstrated a good knowledge of

constitutional law, especially the impact of the Constitution on

the interpretation of statutes and other legislative instruments:

4.3.1. In MEC for Education in Gauteng Province and Other v

Governing Body of Rivonia Primary School and Others

2013 (6) SA 582 (CC), the candidate wrote the main

judgment on the question of the statutory powers of an

MEC in respect of admissions to public schools. She

reversed the approach adopted by the SCA and gave

74


particular weight to the right to a basic education and the

need to allow government to give effect to this right.

4.3.2. In Kubyana v Standard Bank of South Africa Ltd 2014 (3) SA 56

(CC), the candidate wrote the main judgment on the

impact of section 129 of the National Credit Act 34 of

2005. That section deals with the obligations of credit

providers to provide notice to consumers in default. The

candidate’s judgment gave important and helpful

clarification on the position in this regard (which was

heavily contested) and took account of the impact of the

Constitution.

4.3.3. In Minister of Local Government, Environmental Affairs and

Development Planning of the Western Cape v Lagoonbay

Lifestyle Estate (Pty) Ltd and Others 2014 (1) SA 521

(CC), the candidate wrote the judgment for the Court. The

case concerned a challenge to the refusal of applications

for subdivision and zoning under a piece of provisional

legislation and raised the constitutional division of power

between provinces and municipalities. The candidate’s

judgment resolved the issues concerned with clarity and in

doing so helpfully restated the proper procedural approach

to be adopted by Courts when facing constitutional issues.

75


4.4. In several judgments the candidate was called upon to interpret

difficult statutory instruments. Her interpretation was closely

reasoned.


5.1. The candidate displays a commitment to the Constitution and

has acted in the Constitutional Court for a year.

5.2. The candidate displays an ability to balance rights in a sensitive

and measured manner. For example in Kubyana v Standard

Bank of South Africa Ltd 2014 (3) SA 56 (CC) the candidate

interpreted the Constitutional Court’s previous judgment on the

delivery of a section 129 notice under the National Credit Act

and, while emphasising the importance of notice under the Act,

held that the Act does not allow consumers to frustrate the

delivery of the section 129 notice.

5.3. Similarly, in MEC for Education in Gauteng Province and

Other v Governing Body of Rivonia Primary School and Others

2013 (6) SA 582 (CC), the candidate carefully balanced the

respective powers and duties of the MEC for education and

public School Governing Bodies and the rights to education

and administrative justice involved.

5.4. In Law Society of the Northern Provinces v Dube [2012] 4 All

SA 251 the candidate refused to strike an attorney off of the

role of attorneys for offences of dishonesty given the personal

76


circumstances of the attorney and the circumstances leading to

the commission of the offences.

5.5. In Mashinini and Another v S 2012 (1) SACR 604 (SCA) the

candidate acquitted an accused person who had pleaded guilty

to a serious offence because of fatal irregularities in the

procedure by the Magistrate and the National Prosecuting

Authority. In her judgment the candidate reprimanded the NPA

for having charged the accused incorrectly and for not having

taken sufficient care in the conduct of the prosecution with the

result that the accused person had been acquitted.

5.6. In Roux v Health Professions Council of South Africa and

Another [2012] 1 All SA 49 (SCA) the candidate applied the

principle of legality to set aside an additional charge raised

against a medical practitioner by the Health Professions

Council of South Africa because the charge added by the pro

forma complainant was not approved by the Council.

5.7. Rustenburg Local Municipality v Vincent Mdango & Others

Case No 937/13 (30 May 2014), unreported judgment of the

Supreme Court of Appeal, concerned the eviction by the

municipality of the respondents who had taken occupation of

RDP houses allocated to other persons. In her judgment the

candidate disapproved of the non-participation of the MEC and

the Minister in the matter. They were ordered to file affidavits

setting out what steps had been taken to ascertain the

77


availability of suitable alternative land for the respondents and

what alternative land and/or accommodation is or will likely

become available for the respondents. The candidate further

required the occupants to file affidavits setting out their

personal circumstances, including the rights and needs of the

elderly, children, disabled persons and households headed by

women.

5.8. In Ivanov v North West Gambling Board and Others 2012 (6)

SA 67 (SCA) the candidate set aside a search and seizure

warrant where the search warrant had not been properly

obtained. The candidate upheld the applicant’s right to

possession in a spoliation application where the applicant had

been dispossessed of gambling machines because he did not

possess a lawful license from the Gambling Board. The

candidate emphasized that the underlying principles of our law

made it clear that no one was entitled to take the law into their

own hands.

5.9. In Kriel v Legal Aid Board and Others 2010 (2) SA 282 (SCA)

the candidate dismissed an appeal brought by a former

employee against his dismissal by his employer. In her

judgment, the candidate distinguished the matter from the

earlier decisions of the SCA and held that the appellant should

have sought recourse from the Labour Court instead of bringing

Review proceedings in terms of Rule 53 in the high court. On

the authority of a long line of decisions of the SCA, the

78


candidate further held that the dismissal of the appellant did not

constitute administrative action in terms of PAJA and that it

was therefore not reviewable.

5.10. In Medicross Healthcare Group (Pty) Ltd and Another v Prime

Cure Holdings (Pty) Ltd [2006] ZACAC 3 (6 April 2006) the

candidate sat in the Competition Appeal Court. In that matter,

the candidate had occasion to criticise the findings of the

Competition Tribunal. In strong, and yet courteous and

restrained terms, she described the Competition Tribunal’s

ruling as follows:

“It has not proved easy to isolate the essential reasoning

upon which the Tribunal’s determination is predicated.

The following summary seeks to read its key findings in

the best possible light.”

5.11. Elsewhere in her decision, the candidate criticised the approach

adopted by the Tribunal in its analysis of the matter as follows:

“To return to the Tribunal’s approach regarding market

definition, there is an unfortunate absence of a rigorous

exercise to determine the scope and nature of the market.

The Tribunal did not perform any of the traditional

exercises used for determining the dimensions of product

market. There is no analysis in its determination which

sector to compare prices of competing products or the

functionality of those products from a consumer

79


perspective. No customer substitution test was performed:

that is an analysis of price substitutability or functional

substitutability.”

5.12. This is indicative of a desire on the part of the candidate for

rigorous and clear judicial reasoning.

5.13. In S v Carolus 2008 (2) SACR 207 (SCA) the candidate

criticised the conduct of the investigation of the case by the

state. In that matter, the complainant, a child, had identified the

accused when the latter was already held in custody in the

police cell. It was common cause that the complainant had

learnt about the arrest of the accused. The candidate criticized

the failure to conduct a proper identification parade which

adhered to the acceptable rules of fairness. In that regard, the

candidate expressed disapproval of the police’s conduct of the

case as follows:

“In my view, the investigation of this case was conducted

in a slovenly manner. There are clearly defined rules on

how to conduct identification parades. The investigating

officer disregarded these rules. It is imperative that the

police should strive to fulfil their duties with competence,

diligence and efficiency. Failure to do so may affect the

rights of the accused as well as the administration of

justice.”

80


5.14. Notwithstanding this criticism, the candidate found that the

complainant had properly identified the scene where the

offence took place and the accused as the perpetrator. After a

meticulous analysis of the material evidence, the candidate

came to the conclusion that the accused had been properly

convicted of the offence of indecent assault and that his

sentence of 8 years imprisonment was fair in the circumstances.

5.15. Later in her judgment, the candidate further expressed her

disquiet with the conduct of the police and the investigation of

the case when she said the following:

“There are disturbing features of this case that we are

constrained to address. In addition to the flagrant

disregard of the rules relating to the identification of

suspects, no crime kits were available at the hospital to

enable Dr Theron to take a sample for DNA analysis. It is

imperative in sexual assault cases, especially those

involving children, that DNA tests be conducted. Such

tests cannot be performed if crime kits are not provided.

The failure to provide such kits will no doubt impact

negatively on our criminal justice system. Fortunately in

this matter such negative outcome has been avoided by the

brave and satisfactory evidence of A as corroborated by

other witnesses.

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The most disconcerting aspect relates to the delays in the

commencement and finalisation of this matter indicated

above. Counsel for the state was unable to furnish any

explanation. She invited comment by the court in this

regard to ensure that law enforcement agencies and

persons involved in the administration of justice act

appropriately.”

5.16. In the same vein, the candidate was critical of the inordinate

delays that occasioned the conduct of the matter. The

candidate’s criticisms are all the more significant given the

general perception of the criminal justice system, by the public,

as slow and unresponsive. Accordingly, she referred the state

and police’s conduct of the matter to the relevant authorities for

investigation so that endless postponements and inordinate

delays and the other unsatisfactory features she had identified

and complained of, would be addressed.

5.17. The candidate ought to be commended for adopting a strong

principled stance against the incompetence of the state in the

handling of the matter whilst at the same time recognising that

the evidence presented was overwhelming enough to warrant a

conviction and an appropriate sentence.

5.18. As set out below, the candidate’s decision in Nelson Mandela

Metropolitan Municipality v Ngonyama Okpanum Hewitt-

Coleman and Others (765/2010) [2012] ZASCA 11 (14 March

82


2012) was set aside on appeal. It is perhaps worthwhile to

mention the brief factual background to the matter. In that

matter, the candidate had dismissed with costs the plaintiff’s

action against the defendants for the repayment of fees that

were allegedly not due. The action was dismissed on the

ground that, although the amounts paid were in excess of what

was due, the plaintiff when making payment was grossly

negligent.

5.19. The decision of the candidate was overturned. After a careful

analysis of the factual background to the matter, the SCA

disagreed with the finding of the candidate in the court a quo

and concluded that the mistake of the Municipality when

making undue payments had been excusable. Despite arriving

at a different conclusion and overturning her decision, the SCA

did not, however, express any material criticism of the

candidate’s handling of the matter. If anything, the SCA

emphasized that the issue of whether the mistake in condictio

indebiti was excusable was a value judgment that one could

only make after a consideration of various factors. There was

no rule of thumb determining whether the mistake was

excusable or not. The candidate’s decision was upset on appeal

on the factual conclusion that the Municipality had made an

inexcusable error.

5.20. In Farjas (Pty) Ltd v Minister of Agriculture and Land Affairs

of the Republic of South Africa and Others, Rainy Days Farms

83


(Pty) Ltd v Minister of Agriculture and Land Affairs of the

Republic of South Africa and Others 2013 (3) SA 263 (SCA)

the appeal concerned the appropriate compensation in an

expropriation of land matter. The candidate dismissed the

appeal by owners of two immovable properties whose

properties had been expropriated by the erstwhile Minister of

Housing (House of Delegates) in terms of the Expropriation of

Properties Act 63 of 1975. The appellants were dissatisfied

with the compensation paid and had launched proceedings in

the Natal Provincial Division. Later, when the Restitution of

Land Rights Act 22 of 1994 came into being, the appellants had

abandoned their claim. They lodged new claims with the

Regional Land Claims Commissioner, KwaZulu-Natal for the

restoration of their properties, in terms of the Restitution Act.

The appellants later abandoned their claims and asked for

compensation in terms of the Restitution Act. The Land

Claims Court had awarded the appellants compensation. In so

doing, the Land Claims Court had used the Consumer Price

Index (CPI) as a measure of calculating the value of money lost

by the appellants. On appeal, the appellants contended that the

Land Claims Court had erred when it applied the CPI instead of

allowing claim for compound interest as an alternative method

of calculation. The candidate dismissed the appeal and held that

the Land Claims Court had properly exercised its discretion

when it applied the CPI.

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5.21. The judgment evidences the candidate’s understanding that

there are competing demands on the public purse and resources

and that they ought therefore to be used responsibly by those in

authority. In that connection, the candidate upheld the

application of the CPI as a reliable measure of calculation.


6.1. The candidate lists four judgments which have been overturned

on appeal. We were unable to find any other judgments which

have been overturned on appeal, other than these four. Of those

four we have reviewed two of them, Imvula Quality Protection

(Pty) Ltd v Loureiro and Others 2013 (3) SA 407 (SCA) and

Nelson Mandela Metropolitan Municipality v Ngonyama

Okpanum Hewitt- Coleman and Others (765/2010) [2012]

ZASCA 11 (14 March 2012).

6.2. In Imvula three other members of the Supreme Court of Appeal

concurred with the candidate’s judgment. The Constitutional

Court overturned the judgment based on a different conclusion

as to whether facts demonstrated negligence by a security guard

or not.

6.3. In Nelson Mandela Metropolitan Municipality v Ngonyama

Okpanum Hewitt- Coleman and Others (765/2010) [2012]

ZASCA 11 (14 March 2012) the Supreme Court of Appeal

overturned a judgment which the candidate gave while she was

sitting in the High Court. It concerned an enrichment claim and

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she had granted leave to appeal. The appeal was upheld, the

Supreme Court of Appeal disagreed with the candidate on the

issue of whether the overpayment by the Municipality

concerned was an excusable error in law or not.


experience

7.1. The candidate was an attorney for twelve years, although the

nature of her work as an attorney is not known. She has served

as a judge for a cumulative period of thirteen years.


8.1. The candidate’s judgments are succinct, clear and written in

easily understandable language. Her judgment writing skills are

of a high quality.


9.1. No concerns were noted in this regard.


10.1. There were no indications to suggest that the candidate is not

fair and impartial.


11.1. There were no indications that the candidate is not independent

minded.

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11.2. In one Constitutional Court decision, the candidate differed

from her colleagues on a discrete but important legal issue,

suggesting independent mindedness. In Mukaddam v Pioneer

Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC), the

Constitutional Court dealt with the question of whether class

actions had to receive certification from a court before

proceeding and the requirements for such certification. The

candidate considered the main judgment of the Court and

concurred in it, save for two paragraphs. Those paragraphs

suggested that the certification requirements might not apply to

the enforcement of rights against the State or where the

horizontal application of the Bill of Rights was at issue. The

candidate’s separate concurring judgment took a different

approach, concluding that the certification requirement should

apply in this context.


12.1. No adverse comments were received. It has, however, been

remarked of the candidate as a judge on the Supreme Court of

Appeal that she does not question and engage fully with

counsel during hearings and often appears to be passive when

argument is being presented.


13.1. The candidate was the founder of a firm of attorneys. This

would suggest administrative skill.

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13.2. She has also served as a member of a number of committees

including seven years as the Deputy Chair of the Eastern Cape

Gambling & Betting Board.







16.1. The candidate has a lengthy track record of commitment to

human rights and the needs of the community.

16.2. NADEL in their letter of nomination describe the candidate as a

founder member of NADEL and a member of its executive

since inception and an active member and participant in Human

Rights and Advice Centre Projects until her elevation to the

bench.

16.3. She acted as a Small Claims Court Commissioner for six years.

16.4. She served for six years as a member of her local attorneys’

association.

16.5. She has a track record of assisting in judicial training.

88



17.1. It would be inappropriate to speak of potential in a candidate

with this experience.

17.2. Given her lengthy judicial experience it appears that this

candidate would likely be an asset on the Constitutional Court.


community at large

18.1. The appointment of the candidate to the Constitutional Court

would reinforce the message that black women are valuable

contributors to the highest level of judicial office.

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Reported decisionsAvonmore Supermarket CC v Venter 2014 (5) SA 399 (SCA) Mashinini and Another v S 2012 (1) SACR 604 (SCA) (21 February

2012) Pangarker v Botha 2015 (1) SA 503 (SCA)Liebenberg NO and Others v Bergrivier Municipality 2013 (5) SA 246

(CC)Law Society of the Northern Provinces v Dube [2012] 4 All SA 251

(SCA)Grancy Property Limited and Another v Seena Marena Investment (Pty)

Ltd and Others [2014] 3 All SA 123 (SCA)Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa

Ltd and Others 2013 (2) SA 204 (SCA)Diggers Development (Pty) Ltd v City of Matlosana and Others [2012] 1

All SA 428 (SCA) Roux v Health Professions Council of South Africa and Another [2012] 1

All SA 49 (SCA)Imvula Quality Protection (Pty) Ltd v Loureiro and Others 2013 (3) SA

407 (SCA)Kubyana v Standard Bank of South Africa Ltd 2014 (3) SA 56 (CC)Minister of Local Government, Environmental Affairs and Development

Planning of the Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd and Others 2014 (1) SA 521 (CC)

MEC for Education in Gauteng Province and Other v Governing Body of Rivonia Primary School and Others 2013 (6) SA 582 (CC))

Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC)Ivanov v North West Gambling Board and Others 2012 (6) SA 67 (SCA)Kriel v Legal Aid Board and Others 2010 (2) SA 282 (SCA)

90


Farjas (Pty) Ltd v Minister of Agriculture and Land Affairs of the Republic of South Africa and Others, Rainy Days Farms (Pty) Ltd v Minister of Agriculture and Land Affairs of the Republic of South Africa and Others 2013 (3) SA 263 (SCA)

Just Names Properties 11 CC and Another v Fourie and Others 2008 (1) SA 343 (SCA)

S v Carolus 2008 (2) SACR 207 (SCA)Koumantarakis Group CC v Mystic River Investment 45 (Pty) Ltd and

another 2008 (5) SA 159 (SCA)

Unreported decisionsNevilimadi v S (545/13) [2014] ZASCA 41 (31 March 2014)Steyn v S [2014] ZASCA 20 (27 March 2014) Dube v S [2011] ZASCA 236 (30 November 2011)S v Nitito [2011] ZASCA 198Magadla v S [2011] ZASCA 195 (16 November 2011)Rustenburg Local Municipality v Mdango and Others [2014] ZASCA 83

(30 May 2014) South African Land Arrangements CC & Others v Nedbank LTD [2015]

ZASCA 88 (29 May 2015) National Health Laboratory Service v Lloyd-Jansen van Vuuren [2015]

ZASCA 20 (19 March 2015)Road Accident Fund v Zulu and Others [2011] ZASCA 223 (30

November 2011) City of Johannesburg Metropolitan Council v Ngobeni [2012] ZASCA 55

(30 March 2012)Johannes Windvogel v The State [2015] ZASCA 63 (8 May 2015) Medicross Healthcare Group (Pty) Ltd and Another v Prime Cure

Holdings (Pty) Ltd [2006] ZACAC 3 (6 April 2006)

http://www.mylexisnexis.co.za/Library/IframeContent.aspx?dpath=zb/cc/c1ic/e1ic/2i05a/dueab/pnebb/qnebb/4nebb&searchTerms=Mhlantla&ismultiview=False&caAu=

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Judgments upheld on appealNone reviewed

Judgments overturned on appealImvula Quality Protection (Pty) Ltd v Loureiro and Others 2013 (3) SA

407 (SCA)Nelson Mandela Metropolitan Municipality v Ngonyama Okpanum

Hewitt- Coleman and Others (765/2010) [2012] ZASCA 11 (14 March 2012) (appeal judgment of the SCA reviewed, not the candidate’s judgment a quo).

92

CANDIDATE: JUDGE MM MAYA

CANDIDATE: JUDGE MANDISA MURIEL LINDELWA MAYA


SUPREME COURT OF APPEAL

1. Candidate’s appropriate qualifications

1.1. The candidate has obtained the following degrees:

1.1.1. BProc from the University of the Transkei (now Walter

Sisulu University), 1986;

1.1.2. LLB from the University of Natal, Durban, 1988; and

1.1.3. LLM (Labour Law – Alternative Dispute Resolution and

Constitutional Law) from Duke University School of Law,

United States of America, 1990. The candidate was

awarded a Fulbright Scholarship for this purpose.



2.1. The candidate has had a long and distinguished career as a

lawyer and a judge, contributing substantially to the

development of South African law. She has been a member of

the judiciary, in various capacities, since July 1999, and has

been a long-standing member of the Bench in the Supreme

Court of Appeal since May 2006. She has also been a member

of the South African Law Reform Commission since 2013.

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2.2. The candidate has shown a commitment to the Constitution and

to human rights through many of her judgments, and her

association with organizations such as the Black Lawyers

Association and the National Democratic Lawyers Association.

She was also the founder member of the South African Chapter

of the International Association of Women Judges.

2.3. The candidate has also participated in community activism,

making important contributions to promoting the rights of

women and other vulnerable groups in South Africa.

2.4. There is nothing in the application or judgments that would

suggest that the candidate is not a fit and proper person.

3. Whether the candidate’s appointment would help reflect the


3.1. The candidate is a black woman and is currently a member of

the Supreme Court of Appeal.

3.2. The Supreme Court of Appeal presently comprises 25 members

(excluding Acting Judges): seven women (five black, two

white) and eighteen men (twelve black, six white). There is

therefore a clear under-representation of women in this Court.

3.3. The President of the Supreme Court of Appeal is a black man.

The appointment of a black woman to a leadership position

would be an important step towards gender transformation.

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3.4. In addition to her demographic characteristics, the candidate

has through her legal career demonstrated a clear commitment

to transformation and to the promotion of gender equality. She

has taken active steps to promote gender transformation in the

judiciary and in the broader legal profession, providing support

and encouragement to her colleagues in this regard.

3.5. The appointment of the candidate to a leadership position in the

Supreme Court of Appeal would therefore be a significant step

in the advancement of gender representation in the judiciary.


law

4.1. The candidate lists 179 judgments in her application. Most of

these judgments are reported in the South African Law Reports,

South African Criminal Law Reports, Butterworths

Constitutional Law Reports and the Industrial Law Journal.

4.2. Through database searches on JutaLaw and SAFLII, we found

two additional judgments:

4.2.1. Merafong City Local Municipality v AngloGold Ashanti

Limited (20265/14) [2015] ZASCA 85 (28 May 2015);

and

4.2.2. Lodhi 5 Properties Investments CC and others v Firstrand

Bank Limited (170/2014) [2015] ZASCA 72 (22 May

2015).

95


4.3. From this considerable pool of judgments, we have considered

those that the candidate has identified in her application to be

her most significant. These cases span a broad range of legal

issues, demonstrating her in-depth knowledge of the law.

4.4. In Mamone v Commission of Traditional Leadership Disputes

and others [2014] 3 All SA 1 (SCA) the candidate considered

an application for administrative review of a decision involving

the determination of the institution of the kingship of the

Bapedi community and the lineage under which it resorts.

4.5. The case involved a complicated set of facts, drawing on

principles of customary law. The candidate considered the facts

and legal arguments carefully in dismissing the appeal.

4.6. The Constitutional Court upheld this decision on appeal.

4.7. In S v Bogaards [2012] 1 All SA 376 (SCA) the appellant was

convicted of unlawfully harbouring and concealing two men

who were charged with murder, sabotage and several counts of

terrorism. The appellant challenged his conviction. Following a

thorough analysis of the facts and applicable law, the candidate

found that the State did not lead sufficient evidence for the

appellant to be convicted on the charge in question, and set his

conviction aside. However, she held that there was sufficient

evidence to convict the accused on the alternative charge.

4.8. The following aspects of this decision are noteworthy:

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4.8.1. The issues before the Court were complex. In a bench of

five judges, there were four separate judgments. The

candidate’s judgment was the only one in which there was

a concurrence, by Mhlantla JA. Mthiyane JA also

concurred in the candidate’s order, making up a majority

of the Court.

4.8.2. The Constitutional Court unanimously upheld the

candidate’s order in respect of the conviction of the

accused in Bogaards v S 2012 (12) BCLR 1261 (CC). The

Court was split on the accused’s appeal against his

sentence. The case was remitted to the Regional Court for

sentencing.

4.9. The candidate established important legal principles applicable

to the State’s vicarious liability in our constitutional democracy

through her dissenting judgment in Minister of Safety and

Security v F 2011 (3) SA 487 (SCA). The case involved a claim

for damages arising from the rape of the complainant by an off-

duty policeman. The majority of the Court held that because the

policeman was not on duty at the time of the rape, the Minister

of Safety and Security could not be held liable.

4.10. In her minority judgment, the candidate emphasized the

important constitutional role of the police and the responsibility

of police officers to conduct themselves properly to foster the

community’s trust in this institution. Taking these factors into

account, the candidate indicated her disagreement with the

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majority’s failure to find the Minister of Safety and Security

vicariously liable for the policeman’s conduct.

4.11. The Constitutional Court upheld the candidate’s approach in F

v Minister of Safety and Security and another 2012 (1) SA 536

(CC).

4.12. In Ford v Ford [2006] 1 All SA 571 (SCA) the candidate dealt

with an entirely different area of the law, in an application by a

custodian parent to remove a minor child permanently from

South Africa. The candidate recognized the difficult emotional

issues arising from the case, and the parents’ rights at stake. In

performing the Court’s role as upper guardian of all minor

children, the candidate conducted a thorough analysis of what

would be in the minor child’s best interests, taking into account

the evidence of all parties and their experts. She dismissed the

application on the grounds that the removal of the child would

not be in her best interests.

4.13. The candidate considered the right of access to information in

MEC for Roads and Public Works and another v Intertrade

Two (Pty) Ltd 2006 (5) SA 1 (SCA). The case was decided in

the context of an application to review a tender process in terms

of Uniform Rule 53. The respondent had demanded access to

documents falling outside the scope of the Rule 53 record.

Adopting an interpretation of the Promotion of Access to

Information Act that advanced the right of access to

information rather than limiting it, and emphasizing the duties

98


of the State in this context, the candidate found that the

respondent was entitled to the documents sought.

4.14. These decisions demonstrate the candidate’s excellent grasp of

the law, including constitutional law, in wide-ranging and

complex issues. Her clear sensitivity to the vulnerability of

women and children emerges from these decisions, and has

received support from the Constitutional Court. Her knowledge

of the law, and her ability to apply it, makes her an asset to our

judiciary.


5.1. The candidate holds an LLM in Constitutional Law from Duke

University in the United States. This academic training in

constitutional law would certainly benefit her in the position for

which she has applied.

5.2. She has provided copies of two judgments she delivered during

her time as an Acting Justice in the Constitutional Court:

5.2.1. The candidate wrote the majority judgment in Competition

Commission v Loungefoam (Pty) Ltd and others 2012 (9)

BCLR 907 (CC), concurred in by eight judges. The

substance of the case involved the right of the Competition

Commission to amend a complaint referral to the

Competition Tribunal, and to join an additional respondent

as a consequence of one of the amendments. However, the

candidate refused leave to appeal before reaching the

merits of the case, on the grounds that the applicant had

99


approached the Constitutional Court directly, seeking to

bypass the requirement of leave to appeal from the

Competition Appeal Court. In doing so, the appellant had

not demonstrated that it would be in the interests of justice

for a direct appeal to be allowed. Yacoob ACDJ and

Cameron J wrote a dissenting judgment, finding that there

was no statutory bar to a direct appeal to the

Constitutional Court. The dissent held that leave to appeal

should have been granted in the light of the importance of

the Competition Commission’s public role, the

significance of the issues it sought to have determined, the

prospects of success and the absence of any complex

economic considerations in the merits of the case.

5.2.2. The candidate also wrote a dissenting judgment (in which

Mogoeng CJ, Jaftha J and Skweyiya J concurred) in South

African Transport and Allied Workers Union and others v

Moloto and another 2012 (6) SA 299 (CC). In this

judgment she dealt with the right to strike in terms of the

Labour Relations Act and found that the dismissal of

employees who participated in a strike without following

the prescribed notification procedures was not

automatically unfair.

5.3. The candidate has also dealt with cases involving the values

underlying the Constitution during her time in the Supreme

Court of Appeal. The following examples bear mentioning:

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5.3.1. The candidate dealt with complex issues of customary law

in Mamone v Commission of Traditional Leadership

Disputes and Claims and others [2014] 3 All SA 1 (SCA).

This was an administrative review under the Promotion of

Administrative Justice Act and an analysis of the

information taken into account in the Commission of

Traditional Leadership Disputes and Claims in deciding

that the institution of the Bapedi kingship resorted under

the Sekhukhune lineage. In writing a judgment for a

unanimous court, the candidate successfully married

principles of African customary law and administrative

law.

5.3.2. In Department of Correctional Services and others v

POPCRU and another 2013 (4) SA 176 (SCA) the

candidate was called upon to deal with alleged

discrimination on the basis of gender, religion and culture,

through the adoption and enforcement of a strict dress

code. In a unanimous judgment, the candidate upheld the

employees’ cultural and religious rights.

5.4. Through all of these judgments the candidate has been required

to balance competing constitutional values, and apply them to

complex facts. We believe that her ability to do so will be

strengthened by her experience as an Acting Judge in the

Constitutional Court.

5.5. Her extra-curial activities, and particularly her community

activism, reflect a deep commitment to the values of the

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Constitution. The candidate has become a symbol of gender

transformation, and is an important role player in the promotion

of cultural and gender rights.


6.1. The candidate lists two judgments in her application that have

been overturned on appeal:

6.1.1. Gumbi v Old Mutual (unreported), which was overturned

in Old Mutual Life Assurance Co SA Ltd v Gumbi 2007 (5)

SA 552 (SCA). Although the candidate indicates that she

wrote for the Full Court it appears from the judgment of

the Supreme Court of Appeal that there was in fact a split

decision. The candidate wrote the majority judgment that

was overturned on appeal. The Supreme Court of Appeal

preferred the dissenting view of Somyalo JP in upholding

the appeal. It appears that the case, which involved the

procedural fairness of an employee’s dismissal, ultimately

turned on the weighing of various factors and the

application of these factors to the principles.

6.1.2. Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd 2008 (1) SA

654 (SCA), which was overturned in Wary Holdings (Pty)

Ltd v Stalwo (Pty) Ltd 2009 (1) SA 337 (CC). The case

involved difficult interpretational issues regarding

transitional provisions in the legislative framework

governing municipalities. Although the candidate’s

judgment was overturned on appeal, the Constitutional

102


Court’s judgment was split, with the three-judge minority

endorsing the candidate’s view of the case.

6.2. The candidate also lists in her application eight judgments that

were taken on appeal unsuccessfully. The proportion of

successful appeals to unsuccessful appeals is an indication of

the quality of the candidate’s judgments.


experience

7.1. The candidate’s CV reveals that her professional experience

includes the following:

7.1.1. Acting Judge of the Constitutional Court: February to May

2012;

7.1.2. Acting Judge of Appeal, Namibia in a civil appeal

involving a Namibian judge: dates not specified;

7.1.3. Judge of the Supreme Court of Appeal: May 2006 to

present;

7.1.4. Acting Judge of the Supreme Court of Appeal: February

2005 to May 2006;

7.1.5. Acting Judge of the Labour Court: Fourth Term 2004;

7.1.6. Judge of the Transkei Division of the High Court: May

2000 – 2004;

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7.1.7. Acting Judge of the Transkei Division of the High Court:

October 1999 – April 2000;

7.1.8. Acting Judge of the Cape High Court: July to September

1999;

7.1.9. Practising Advocate Transkei Society of Advocates:

January 1994 – July 1999;

7.1.10. Investigator for the Independent Electoral Commission:

1994 National Elections;

7.1.11. Assistant Law Adviser in the Department of Justice: April

1991 – August 1993; and

7.1.12. Part-time Law Lecturer at the University of Transkei:

1992, 1993 and 1995.

7.2. The candidate therefore has a broad range of experience in the

legal profession, with approximately sixteen years of judicial

experience. She has sat as a judge in a large number of courts

and has experience over many types of cases.


8.1. From a reading of her judgments, the candidate demonstrates a

high level of linguistic and communication skills in English.

Her judgments are well-written, well-researched, and well-

reasoned.

8.2. The candidate is also fluent in isiXhosa, isiZulu and Afrikaans.

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9.1. No adverse comments have been received. To our knowledge,

the candidate has no judgments outstanding. There therefore

appears to be no basis to challenge the candidate’s ability to

deliver judgments promptly.


10.1. The candidate’s judgments indicate a well-balanced, fair and

impartial approach to the issues and parties before her. There is

no basis on which to doubt the candidate’s fairness and

impartiality.

11. The candidate’s independent-mindedness

11.1. The candidate appears to be an independent judge.

11.2. She has written dissenting judgments on important and difficult

legal issues in both the SCA and the Constitutional Court.

11.3. The candidate wrote a dissenting judgment in Minister of Safety

and Security v F 2011 (3) SA 487 (SCA), which involved

difficult questions of vicarious liability in circumstances where

an off-duty policeman raped a woman. The majority held that

because the policeman was not purporting to act on behalf of

the State at the time of the rape, the Minister of Safety and

Security could not be held vicariously liable. In her dissent, the

candidate emphasized the specific role of the police in our

constitutional democracy and the protection of citizens. The

Constitutional Court upheld this approach on appeal.

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11.4. She also wrote a dissenting judgment in Spearhead Property

Holdings v E & D Motors (Pty) Ltd 2012 (2) SA 1 (SCA). The

case involved the enforceability of an option to purchase

business premises in terms of a lease agreement.

11.5. In South African Transport and Allied Workers Union and

others v Moloto and another 2012 (6) SA 299 (CC) the

candidate wrote a dissenting judgment (in which Mogoeng CJ,

Jafta J and Skweyiya J concurred) involving the fairness of a

dismissal of workers who had participated in a strike without

following the prescribed notification procedures. She wrote this

judgment while she was an Acting Justice in the Constitutional

Court, which is indicative of her independent-mindedness and

her willingness to express a different view where she deems it

necessary to do so.

11.6. The candidate has also written a number of separate concurring

judgments.


12.1. There do not appear to be any concerns in this regard from the

judgments considered. The candidate has presided over and

conducted numerous hearings in different courts over a period

spanning many years. As a senior member of the Supreme

Court of Appeal, she has presided over cases since 2013.


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13.1. The candidate has detailed in her application her participation

in the committees of judges in the Supreme Court of Appeal.

She currently sits in the Finance Committee and chairs the

Legislation and Liaison Committee. The candidate has also

been a member of the Information (Library) Committee. Her

participation in these committees is indicative of her

administrative abilities.


14.1. There do not appear to be any issues for concern in this regard.

It is clear from the candidate’s application form that she

conducts her affairs in accordance with a high degree of

integrity and honesty.

14.2. For example, the candidate has dedicated a portion of her

application form to detailing the circumstances of a grossly

inaccurate media report concerning a sentence imposed

following a conviction of accessory to murder. The way in

which the candidate managed this matter, as well as her

disclosure of the circumstances in her application form,

confirms her high standard of ethics and integrity.

14.3. To our knowledge, no comments to the contrary have been

made.

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15.1. There is nothing to suggest that the candidate does not have the

appropriate judicial temperament.




16.1. It is evident from many of the candidate’s judgments that she

has a strong commitment to human rights and to ensuring that

law plays an effective role in social justice. She has

demonstrated her efforts to use the law to protect vulnerable

members of society.

16.2. Her application form indicates that she has been involved in a

number of community-based organisations, including the

Transkei Women Zenzele Association and the Women’s

Economic advancement Group (Pty) Ltd.

16.3. She has also been a member of the Black Lawyers Association,

the National Association for Democratic Lawyers and the

Commonwealth Association of Law Reform Agencies. She

founded the International Association of Women Judges in

2004, and holds various leadership and advisory roles in

organisations such as Lawyers Against Abuse and the South

African Institute for Advanced Constitutional, Public, Human

Rights and International Law.

108


16.4. In 2012 the candidate was honoured as the South African

Women Lawyers Icon, demonstrating the legal community’s

recognition of her stature.


17.1. The candidate has demonstrated during her many years as a

judge that she is a diligent, hard-working and committed judge,

with a sound work ethic and a commitment to upholding the

rights of the most vulnerable members of our society.

17.2. If appointed, the candidate would strengthen the leadership of

the Supreme Court of Appeal and serve as an important role

model in furthering the objectives of transformation of the

judiciary.


community at large

18.1. The appointment of a black woman as Deputy President of the

Supreme Court of Appeal will send a powerful message that

gender and race transformation can be successfully married

with appointing the leaders in our judiciary.

18.2. In our view, this is an important message at this time,

particularly in the light of the criticism of inadequate measures

to promote racial and gender transformation in the judiciary.

109



Reported decisionsWormald NO & Others v Kambule 2006 (3) SA (SCA)MEC for Roads and Public Works, Eastern Cape & Another v Intertrade

Two (Pty) 2006 (5) SA 1 (SCA)Lebowa Platinum Mines (Pty) Ltd v Viljoen 2009 (3) SA 511 (SCA)Camps Bay Ratepayers’ and Resident’s Association v Harrison [210] 2

All SA 519 (SCA)Minister of Safety and Security v F 2011 (3) SA 487 (SCA)Spearhead Property Holdings v E&D Motors (Pty) Ltd 2012 (2) SA 1

(SCA) Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd 2008 (1) SA 654 (SCA)Commissioner, South African Revenue Service v Sprigg Investment 117

CC t/a Global Investment 2011 (4) SA 551 (SCA) Kini Bay Village Association v Nelson Mandela Metropolitan

Municipality & Others 2009 (2) SA 166 (SCA)City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd 2010

(3) SA 589 (SCA)

Judgments Upheld on AppealMinister of Safety and Security v F [2011] ZASCA 3 (22 February 2011)

Judgments overturned on AppealGumbi v Old Mutual (unreported)Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd 2008 (1) SA 654 (SCA)

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