Municipality and Others [2013] 3 All SA 528 (GNP), South African National Defence Union v Minister of Defence and Others 2012 (4) SA 382 (GNP), Tlou v Ralebipi [2016] 4 All SA 251 (GP) and the unreported judgment of Tshwane University of Technology v Dladla 2015 JDR 0375 (GP). The candidate’s experience in constitutional law from his practice as an attorney, particularly at the LHR, and his time as the Commissioner, Deputy Chairperson and Chairperson of the HRC. The candidate brings that experience to bear in his judgments. See, for example, GF v SH and Others 2011 (3) SA 25 (GNP), dealing with an oral variation of a maintenance order, and Ex Parte Application WH and Others [2011] 4 All SA 630 (GNP), co-written with Tolmay J, concerning the confirmation of a surrogacy agreement in terms of sections 292 and 295 of the Children’s Act 38 of 2006. The candidate found in Section 27 and Others v Minister of Education and Another 2013 (2) SA 40 (GNP) that a failure to deliver textbooks constituted a violation of the right to education. In the unreported judgment of Motaung v Liphafa 2016 JDR 1078 (GP), the candidate concluded that, although any lacuna in the Protection from Harassment Act 17 of 2011 (where the person on whom an interim protection order is served is a minor child) is adequately filled by the provisions of the Children’s Act and therefore not unconstitutional, the necessary forms dealing with service and notification should be amended to ensure that service is also effected on the minor trial
ought to have regarded the declaration as a nullity and thus incapable of certification. Shakawa Hunting & Game Lodge (Pty) Ltd v Askari Adventures CC [2015] JOL 33131 (SCA) The SCA overturned the candidate’s interpretation of a contract and, on a proper construction of all its terms, granted the claim. In doing so, the SCA found that “[t]he fundamental error the court below committed was to ignore clause 1 entirely in its attempt to interpret the parties’ agreement” and that the evidence of a material witness had been misinterpreted by the candidate. The reviewers refer in addition to the errors found by appellate Courts to have been made by the candidate in: Du Preez v Tornel Props (Pty) Ltd [2016] JOL 34123 (SCA). This was an appeal against a judgment of the candidate which was partly upheld. The SCA held that the candidate erred in categorising the legal nature of the conduct of the parties and in relying on an unproved quotation for the purposes of quantification; and SH v GF and Others 2013 (6) SA 621 (SCA). This was an appeal against a judgment of the candidate that was dismissed, but the SCA held that the candidate erred in concluding, on the basis of public policy, that a maintenance order had been varied.
S v Steyn 2010 (1) SACR 411 (SCA) S v RO and Another 2010 (2) SACR 248 (SCA) Minister of Agriculture and Land Affairs v CJ (Pty) Ltd [2010] 3 All SA 537 (SCA) Opperman and Another v S [2010] 4 All SA 267 (SCA) Minister of Safety and Security v Venter and Others 2011 (2) SACR 67 (SCA) CONSAWU v NEDLAC and Others [2011] 3 All SA 497 (SCA) Mokala Beleggings and Another v Minister of Rural Development and Land Reform and Others 2012 (4) SA 22 (SCA) Dlamini v S [2012] 2 All SA 569 (SCA) Phillips v South African Reserve Bank and Others 2013 (6) SA 450 (SCA) Minister of Agriculture and Land Affairs and another v De and others [2014] 1 All SA 158 (SCA) Lester v Ndlambe Municipality and Another [2014] 1 All SA 402 (SCA) National African Federated Chamber of Commerce and Industry and others v Mkhize and others [2015] 1 All SA 393 (SCA) Hendricks v Hendricks and Others 2016 (1) SA 511 (SCA)
XYZ CC v Commissioner for the South African Revenue Service 2013 JDR 0352 (Tax) S v 2013 JDR 0653 (SCA) S v Mnisi 2013 JDR 0655 (SCA) Louisvale Pirates v South African Football Association 2012 JDR 0739 (GSJ) Nkosi v Minister of Safety and Security 2012 JDR 0870 (GSJ) T M L Consultancy CC v The Commissioner for The South African Revenue Service 2012 JDR 1061 (TAX) S v Jeke 2012 JDR 1551 (GSJ) Strata Mining Supplies CC v Fourie 2012 JDR 1885 (GSJ) Buena Vista Trading 15 (Pty) Limited v Gauteng Department of Roads and Transport 2012 JDR 2198 (GSJ) S v Mudau 2012 JDR 2319 (SCA) City of Johannesburg Metropolitan Municipality v International Parking Management (Pty) Ltd 2011 JDR 0127 (GSJ) Standard Bank of South Africa Ltd v Margalit 2011 JDR 0790 (GSJ) Seshoka v Road Accident Fund 2011 JDR 1164 (GSJ) Specialised Utility and Management Services (Pty) Ltd v Dimant 2011 JDR 1165 (GSJ) Specialised Utility and Management Services (Pty) Ltd v Dimant 2011
Court litigation may be an issue to be canvassed during his interview. The candidate’s linguistic and communication skills Based on the judgments reviewed, the candidate expresses himself in easily understandable language and has good communication and linguistic skills. The candidate’s ability to produce judgments promptly No concerns were noted in this regard. The candidate’s fairness and impartiality There is nothing in the candidate’s application or in the material reviewed to suggest that he is not fair and impartial or that he would not execute his duties fairly and impartially. The candidate’s independent mindedness There is nothing in the candidate’s application or in the material reviewed to suggest that he is not independent minded. The candidate’s ability to conduct proceedings The candidate does not appear to have practiced much in the High Court. However, given the candidate’s experience in chairing committees and in mediation and arbitration, the candidate
operational justifiability and the obligation to consult with the trade union. This is a lengthy judgment. This case was an application in terms of section 158(1)(h) of the Labour Relations Act, (“LRA”) to review the employer’s (Second Respondent’s) decision not to reinstate the Applicant (employee) subsequent to the applicant’s termination of services in terms of section 17(3)(a) of the Public Service Act (“PSA”). The main issue to be decided was whether the Second Respondent’s decision to refuse reinstatement of the employee passed the legality test within the context of review. The employer’s decision was reviewed and set aside. This was a review of an arbitration award, in which the commissioner found the employee’s dismissal procedurally unfair and awarded compensation. The employer’s evidence was contradictory as to the date of hearing. It was held that the employee was not afforded an opportunity to refute the employer’s evidence. The commissioner’s award was upheld as reasonable, and the review was dismissed.
The message that the candidate's appointment would send to the community at large The appointment of the candidate would show the judiciary's commitment to transformation, which would be a positive message to the community at large. ANNEXURE: LIST OF JUDGMENTS CONSIDERED decisions and Others v Schmidt N.O and Another (JS564/11) [2016] ZALCJHB 196; (2016) 37 (ILJ) 2662 (LC) (19 May 2016) decisions Boeyens v Murray and Roberts (Pty) Ltd (Projects) (JS381/15) [2016] ZALCJHB 163 Minister of Police and Another v and Another (JR76/13) [2016] ZALCJHB 194
The applicant attached judgments to her application. A further three judgments were found. All six are unreported. On the the candidate’s judgments appear to be and care has been taken in deliberation. An analysis of the judgments, however, reveals that the candidate can have a tendency to be overly lengthy when regard is had to the nature of the issues. In some the reasoning could have been better structured, which would have resulted in more concise decisions. The unfortunate result is that many of her judgments have not been delivered promptly. This is reflected in the Table below: No Decision Heard Delivered 1 SARS v CCMA & Others 23/03/2016 21/10/2016 2 Mdzikwa v CCMA & Others 23/03/2016 08/11/2016 3 SAMWU obo Molekwa v COJ (Urgent Applic) 16/02/2016 08/03/2016 4 UTI South Africa v Pilusa & others 20/02/2016 21/07/2016 5 Ndzutu v SAPS and Minister of Police 04/03/2016 23/02/2017 6 Mocqhaka Local Municipality v Lekota & Others 11/02/2016 16/08/2016 The candidate’s application indicates that she has three reserved judgments from her stint at the Labour Court from 25 July 2016 to 26 August 2016, being:
Ahlesa Blankets (Pty) Ltd v South African Clothing and Textle Workers Union (SACTWU) and Others (CA 5/2010) [2012] ZALAC 45 (2 March 2012) Botha v Commission For Conciliation Mediation and Arbitration and Others (PA5/2013) [2014] ZALAC 75; [2015] 4 BLLR 404 (LAC); (2015) 36 ILJ 1463 (LAC) (12 December 2014) UASA v Impala Platinum Ltd 2012 JDR 1468 (LAC) Transport and Allied Workers Union of South Africa v PUTCO Limited [2016] ZACC 7 Judgments overturned on appeal Metcash Trading Africa (Pty) Ltd v Maseko NO and Others (JA52/08) [2010] ZALAC 34 (28 May 2010) Radebe and Another v Premier, Free and Others (JA 61/09) [2012] ZALAC 15; 2012 (5) SA 100 (LAC); [2012] 12 BLLR 1246 (LAC); (2012) 33 ILJ 2353 (LAC) (1 June 2012) PT Operatioal Services (Pty) Ltd v RAWU obo Ngwetsana (JA7/11) [2012] ZALAC 34; [2013] 3 BLLR 225 (LAC); (2013) 34 ILJ 1138 (LAC) (27 November 2012)