Judge Ray Zondo: The Joburg Bar Council's assessment

Submission to the JSC on short listed candidate for the ConCourt

Johannesburg Bar Council, Submission on short listed candidates to be interviewed for appointment to the Constitutional Court, submitted by the GCB to the JSC, May 30 2012


1 The candidate's appropriate qualifications

1.1 The candidate holds the following degrees:

1.1.1 BJuris (University of Zululand);

1.1.2 LLB (Natal);

1.1.3 LLM (cum laude) (UNISA);

1.1.4 LLM with specialisation in Commercial law (UNISA); and

1.1.5 A shortly to be conferred LLM (UNISA) in patent law.

1.2 The candidate is appropriately qualified.

2 Whether the candidate is a fit and proper person

2.1 There is nothing in the application or judgments of the candidate that would suggest that the candidate is not a fit and proper person.

2.2 We do raise concerns arising from the candidate's performance as administrative head of the Labour Courts and also refer to an incident on the Constitutional Court where, it may be argued, the candidate failed timeously to disclose a material interest in a matter in which he sat (see paragraph 55 14.2 below). The Commission may wish to question the candidate on these issues as they may impact upon the question whether the candidate is a fit and proper 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 man.

3.2 The Constitutional Court presently comprises 10 members: 3 white men, 2 black women and 5 black men.

3.3 The appointment of another black man will not enhance the race and gender composition of the court. Clearly, there is a shortage of women of all races.

3.4 This must be considered together with the other possible contributions the candidate would make if appointed.

4 The candidate's knowledge of the law, including constitutional law

4.1 We have had regard to the candidate's judgments in the Labour Court, Labour Appeal Court, North Gauteng High Court and the Constitutional Court. We are constrained to draw the Commission's attention to the candidate's long tenure (1997 to 2010) in the Labour Court and Labour Appeal Court in contrast to the candidate's relatively short exposure to wider fields of law while a judge of the North Gauteng High Court (8 November 2010 until 31 October 2011) and the Constitutional Court (1 November 2011 to 31 May 2012).

Hence, the candidate's has limited exposure to fields of law beyond labour law.

4.2 We note, however, that during his tenure at the North Gauteng High Court, the candidate was assigned a number of relatively complex matters. In the administrative law matters determined by him during that time, he demonstrated an understanding of public law principles, and a willingness to engage in the constitutional issues raised. He has therefore demonstrated, not only a deep understanding of labour law, but has an enduring commitment to constitutional law imperatives, both in deciding labour law issues and in other matters.

4.3 A large number of matters referred to the Constitutional Court concern the exercise of State power by the President, Ministers of State; Premiers; MECs; government departments and other bodies performing executive and administrative functions. The candidate's experience in presenting cases involving, and in adjudicating matters where, the interpretation and application of principles of administrative law are central issues is of concern in determining whether the candidate should be recommended to the President for appointment to the vacant post.

4.4 In his application, the candidate highlights a number of decisions in order to demonstrate his exposure and knowledge of administrative law. We note that the candidate refers to seven judgments in which he participated (five as the attorney acting for one of the parties; and two in the candidate's capacity as Judge President of the LAC) as support for the candidate's contention that he has "extensive experience" in administrative law. The five judgments in which the candidate acted in the capacity of instructing attorney to parties to litigation occurred 15 or more years ago while the only two reported judgments were handed down by the candidate in 2000 and 2008 respectively. While there can be no doubt that the judgments show that the candidate has had exposure to administrative law, this exposure is somewhat limited.

4.5 An analysis of the reported judgments written by the candidate and which he relies on to demonstrate his exposure to administrative law, reveals the following:

4.5.1 The candidate's decision in Modise & Others v Steve's Spar Blackheath (2000) 21 lU 519 (LAC) is important in that it extended the doctrine of audi alteram partem to a new class of worker, namely those facing dismissal having embarking upon unprotected strike action.

Subsequent to the candidate's judgment in Steve s Spar, employers were required to grant the striking worker a fair opportunity to state why they should not be disciplined/dismissed for participating in an unprotected strike, thus preventing employers from making arbitrary and unreasoned decisions to dismiss without input from the affected employees who were now able to seek to dissuade the employer from dismissing them. The candidate's reasoning based on administrative law principles was sound and showed that the candidate not only had a firm grasp of those principles but was capable of applying the principles to the facts.

4.5.2 In Nxele v Chief Deputy commissioner, corporate Services, Department of Correctional Services & Others (2008) 29 lU 2709 (LAC), the candidate considered an appeal concerning complaints that correctional services employees had been transferred in breach of the provisions of the Correctional Services Act ("CSA"). In preparing his judgment, the candidate was required and indeed did consider the internal mechanisms regarding transfers within the Correctional Services Department within the context of the CSA, the Labour Relations Act and the rules of natural justice, in particular, the audi alteram partem rule. All this was done against the background of a complex factual matrix. The candidate's decision was not challenged in an appeal and serves as a virtual "set of instructions" on how to conduct transfers in state departments, in general, and the correctional services department in particular.

4.6 To these cases must be added the candidate's sound understanding of administrative law demonstrated in the judgment of Agri Wire Pty,) Limited & Another v Commissioner of the Competition Commission & Others [2011] ZAGPPHC 117 (5 July 2011). In that matter, the candidate was faced with a review of the Competition Commission's decision to grant leniency to a party under its whistle-blower policy (referred to as the "corporate Leniency Policy") on the basis that the Commission had no power to grant leniency at all. The candidate undertook a comprehensive analysis of the nature and scope of the Commission's powers and determined that it was authorised to grant conditional leniency to an applicant in exchange for assistance in prosecuting a complaint of prohibited conduct under the Competition Act.

4.7 We note that the candidate undertook further academic study on a Master's degree level in fields as diverse as patent law and competition law during his tenure as Judge President of the Labour Court. By doing so, the candidate displayed the admirable traits of an enquiring mind wishing to expand his knowledge and understanding of fields of law far beyond labour law. The candidate applied the principles of law relevant to those studies to matters that have come before the candidate as a judge of the High Court and as an Acting Judge of the Constitutional Court.

4.8 The judgments that the candidate listed in his application span an impressively vast range of labour law issues from affirmative action to retrenchment, and there are few areas of the Labour Relations Act, the Basic Conditions of Employment Act and the Employment Equity Act that have not been analysed, interpreted and applied by the candidate.

4.9 The candidate's contribution to developing our labour law jurisprudence is probably unsurpassed by any other judge when regard is had to the status of the candidate's pronouncements as a member of the Labour Appeal Court, and many courts have followed approaches first pronounced by the candidate.

4.10 The candidate identified 104 reported judgments handed down by him. A reading of the candidate's judgments indicates that he is capable of producing lucid (albeit sometimes regarded by legal practitioners as needlessly lengthy) judgments. The judgments are well set-out, logically structured, and are easy to comprehend in terms of both style and legal reasoning. He proceeds from basic principles, and develops his reasoning from this starting point. He demonstrates a good sense of the practicalities of law and legal procedure. This is balanced by a resort to, and discussion of, relevant authority in all of his judgments. His judgments reflect a sense of legal maturity befitting his tenure. All of his judgments are substantial, and deal fully with all of the relevant issues raised.

5 The candidate's commitment to the values of the Constitution

5.1 The candidate's commitment to the values of the Constitution is demonstrated by the manner in which the candidate makes a point of analysing labour law issues in the context of the Constitution. The candidate makes a point of referring to pronouncements of the Constitutional Court and analysing their impact and application to the issues in appeals before him.

5.2 The candidate has shown a considered appreciation of the Constitutional Court's approach to the interpretation of statutes (a "purposive" approach of general application, which is not restricted to use in instances of ambiguity) and reminds himself of the role and importance played by section 23 of the Constitution (providing employees with a right to fair labour practices) as the starting point when interpreting labour legislation. He also has a clear grasp on the limits imposed on public power by the doctrine of legality and the constitutional right to fair administrative justice.

5.3 In the field of administrative law, particular regard should be had to the Agri Wire matter (see page 9 of the candidate's CV) where the candidate demonstrates an understanding on the legal limits imposed on the powers of administrative bodies.

6 Whether any judgments have been overturned on appeal

6.1 Most of the candidate's judgments have been upheld in appeal including by the Constitutional Court in certain seminal cases (in some of which, the candidate's decisions were initially overturned by the SCA). We draw the Commission's attention in this regard to the judgments in:

6.1.1 National Education Health and Allied Workers Union v University of Cape Town & Others 2003 (3) SA 1 (CC) (concerning the transfer of a business in terms of section 197 of the LRA);

6.1.2 Xinwa & Others v Volkswagen of South Africa (Ply) Ltd 2003 (4) SA 390 (CC) (concerning the appropriate test in an application for leave to appeal);

6.1.3 Sidumo & Another v Rustenburg Platinum Mines Ltd & Others 2008 (2) SA 24 (CC) (concerning the appropriate test to apply when reviewing an arbitrator's decision); and

6.1.4 CUSA v Tao Ying Metal Industries & Others 2009 (2) SA 204 (CC); (the role of commissioners in resolving labour disputes; the proper characterisation of labour disputes; and the role of courts in overseeing the arbitral process).

6.2 A limited number of the candidate's judgments have been overturned on appeal. It should be borne in mind that a judge writing several judgments a year and concurring in many more is likely to be overturned on appeal from time to time. What is therefore important is not the fact that the candidate's judgments have been overturned but rather whether the judgments were overturned due to the candidate's lack of understanding of legal principles; lack of diligence or a general failure to carry out the tasks of a judge.

6.2.1 In Edgars Stores Limited v SA CCA WU (1998) 19 lU 771 (LAC), the candidate, while a Labour Court Judge, determined for purposes of the transitional arrangements in the Labour Relations Act that a "dispute" in item 22 of schedule 7 of that Act would have arisen on the date on which a dispute was declared. This finding was important as it meant that the labour dispute declared by the Union could be determined by the then newly established CCMA. On appeal, the Labour Appeal Court concluded that the candidate's interpretation was wrong and that the determinative date is the date on which the cause of action arose, that is, the date on which the unfair dismissal took place.

6.2.2 In CI WUv Johnson & Johnson (1999) 20 lU 89 (LAC), the candidate found that a retrenchment exercise by the employer was procedurally unfair in that the method of selecting candidates for retrenchment had not been agreed. On appeal, the Labour Appeal Court held that the Labour Relations Act, while affording an aggrieved employee the right to be awarded compensation for procedural unfairness, also gives the adjudicator a discretion to award compensation in the prescribed amount or no compensation at all. The candidate had failed to consider whether such discretion exists.

6.2.3 In Bader Bop (Ply) Ltd v Mimsa 2003 (3) SA 513 (CC), the candidate, in a majority judgment of the Labour Appeal Court, concluded that members of a minority union were disqualified from resorting to strike action in support of a demand that the employer recognise the union and allow the union to exercise their organisational rights. In an appeal to the Constitutional Court, the candidate's decision was found to be incorrect. The Constitutional Court held that members of minority unions were entitled to exercise a right to strike in advancement of demands such as for recognition by the employer. In reaching the conclusion which he did, the candidate failed to recognise and give full effect to the constitutional right to strike by adopting an approach in favour a restrictive interpretation of the right to strike.

6.2.4 In Gordon v Department of Health. KwaZulu-Natal (2008) 29 lU 2535 (SCA), the candidate dismissed an appeal concerning affirmative action on the grounds of non-joinder as the "successful" applicant for the position had not been joined in the application. The Supreme Court of Appeal found that that Labour Appeal Court had erred in relying on two decisions - Traub v Minister of Health, and Du Preez & Others v Truth & Reconciliation Commission - as those decisions did not address the question of joinder. The Supreme Court of Appeal, moreover, found that the Labour Appeal Court had erred in declining to have regard to the relief sought by the applicant when determining whether a party should have been joined, as the relief sought can indicate whether the person has a substantial and direct interest in the matter. This decision highlights the candidate's limited exposure to civil procedure, and the civil courts in general.

6.2.5 In Shoprite Checkers (Ply Ltd) v CMA & Others [2008] 12 BLLR 1211 (LAC), the Supreme Court of Appeal criticised the candidate's judgment in the Labour Appeal Court as misconceiving the nature of the Labour Appeal Court's appellate function in the light of the Sidurno judgment where the approach to reviewing arbitral awards was explained. For reasons that are difficult to discern, the candidate failed to follow Sidumo by apparently not realising that when the Labour Appeal Court stepped into the shoes of the Labour Court, the Labour Appeal Court was exercising, not its traditional appeal powers, but rather the fairly circumscribed s 145(2) review powers of the Labour Court. Accordingly, the candidate overlooked the fact that his warrant for interference with the award of the arbitrator was narrowly confined.

7 The extent and breadth of the candidate's professional experience

7.1 The candidate practised as an admitted attorney and partner under the name and style of Mathe and Zondo Incorporated in KwaZulu-Natal from May 1989 to October 1997. The candidate's contends that the practice was of a general nature; however, the candidate's practice seemed to fall predominantly within the field of labour law. Hence the candidate's involvement in excess of 50 reported cases on labour law. (On the other hand, it is unreasonable to criticise the candidate for not gaining experience in commercial law and other associated fields as that would be to lose sight of the lack of opportunities available to black legal practitioners in the 1980s. It is a historical fact that black attorneys were most frequently instructed by trade unions and virtually penniless individuals, while being ignored by businessmen seeking the services of attorneys.)

7.2 The candidate accepted an acting appointment to the Labour Court on 1 February 1997 and assumed a permanent appointment on that court on 1 November 1997. In April/May 1999, the candidate was appointed a judge of the (then) Transvaal Provincial Division but nevertheless continued to preside solely in the Labour Court.

7.3 The candidate was appointed Judge President of the Labour Appeal Court and Labour Court on 1 May 2000, having acted in that position from 1 August 1999.

7.4 When the candidate's ten year term as Judge President expired on 30 April 2010, the candidate was appointed as Acting Judge President for a further month pending assumption of duty by the newly appointed Judge President.

7.5 As Judge President of the Labour Court and Labour Appeal Court, the candidate was responsible for the administration of the Labour Court, presided over appeals to the Labour Appeal Court and generally ensured the smooth running of the Labour Court. Consideration must be given to the fact that the administrative functions of a Judge President of the Labour Court are probably more onerous than those of a Judge President of a provincial division of the High Court in that the Labour Court is seated in four separate venues, being Johannesburg (Braamfontein), eThekwini, Cape Town and Nelson Mandela Bay. Each seat of the Labour Court has a separate registry which the Judge President must supervise. The candidate was exposed to sufficient opportunities to show his capacity (or lack thereof) to cany out the administrative tasks required of a Judge President. In this regard, we are obliged to raise the concerns of our members - those who have and continue to appear in the Labour Court and Labour Appeal Court - about the manner in which those courts operated during the tenure of the candidate and comment on the candidate's administrative abilities. We do so below.

7.6 After taking long leave from 1 June 2010, the candidate assumed duties as a judge of the High Court (North Gauteng Division) on 8 November 2010 until 31 October 2011 when the President appointed the candidate as Acting Judge of the Constitutional Court for the period 1 November 2011 to 31 May 2012. During that time, the candidate presided over matters of some complexity.

7.7 The candidate has held an acting post on the Constitutional Court since 31 October 2011. During that time, he has played an active role on the Bench, and readily engages with the cases before the court and counsel presenting argument. He wrote a dissenting judgment in the matter of Maphango & Others v Aengus Lfesty1e Properties (Ply) Ltd (CCT 57/11) [2012j ZACC 2 (13 March 2012), which demonstrates an independence of mind.

8 The candidate's linguistic and communication skills

8.1 From a reading of his judgments, the candidate demonstrates a high level of linguistic and communication skills.

9 The candidate's ability to produce judgments promptly

9.1 There have been instances where judgments written by the candidate were handed down more than 12 months after appeals were argued. The Commission may wish to ask the candidate to explain this phenomenon.

9.2 We have been unable to conduct a comprehensive analysis of the time taken by the candidate to hand down his judgments due to the hearing date of matters not being included in the relevant law reports. Nevertheless, reports from practitioners indicate that the candidate often seemed to take a considerable amount of time before handing down his judgments.

10 The candidate's fairness and impartiality

10.1 The candidate enjoys a reputation amongst practitioners for fairness and impartiality.

11 The candidate's independent mindedness

11.1 The independent mindedness of the candidate can be inferred from the number of dissents written by the candidate when convinced by the correctness of his view in a matter (including a dissent written recently during his acting appointment on the Constitutional Court). That a number of these dissenting judgments were upheld on appeal is testament to the candidate's well-placed confidence in his reasoning, despite his fellow-judges not sharing his confidence at the time.

12 The candidate's ability to conduct court proceedings

12.1 The candidate conducts proceedings in a dignified manner which commands respect from practitioners.

13 The candidate's administrative ability

13.1 The Commission may wish to question the candidate on the ( state of the Labour Court's registry during the candidate's tenancy as Judge President. Missing files, and a somewhat chaotic and unreliable filing system, were, and remain, obstinate features of the Labour Court. It is worth observing that many of the employees in the registry are long-serving employees of the Department of Justice having spent many years employed in the registry. In our view, a lack of strong and determined senior management may be responsible for permitting these employees to slide into a zone of comfort seemingly immune to criticism and discipline. Without knowing the circumstances under which senior management (the registrar and office manager) are appointed, we are not in a position to understand why more assertive and motivated senior managers have not been appointed.

13.2 We feel obliged to draw the Commission's attention to repeated criticism by the Constitutional Court, and the Supreme Court of Appeal (in Shoprite checkers (Ply,) Ltd v Commission for Conciliation, Mediation & Arbitration & Others 2009 (3) SA 493 (SCA) at paras 33-34, and Republican Press (Pty) Ltd v CEPP WA Wi] & Others 2008 (1) SA 404 (SCA) at paras 20-22) of long delays experienced in finalising labour cases.

13.3 In Billiton Aluminium SA Ltd 1/a Hillside Aluminium v Khanyile & Others (2010) 31 lU 273 (CC) para 44, Judge van der Westhuizen for the Constitutional Court referred to the roles of participants in the labour dispute resolution process and the need to prevent systemic failures in the system. Amongst the participants listed were "the judges in the Labour Court, the Labour Appeal court, the Supreme Court of Appeal and in this court. The delays in the ‘system' are caused by any one or more of these actors. ‘Systemic delay' is not an impersonal, inevitable and independent force, it is simply a delay caused by the inaction of people within the labour dispute-resolution process".

13.4 The learned judge went on to note at para 45, that "in three recent judgments this court has found it necessary to make adverse comments about institutional delays in the labour dispute-resolution process. In the same period two judgments were delivered in the Supreme court of Appeal on the same issue. It is unfortunately necessary to make some forthright comments about this unsatisfactory state of affairs again.

There is nothing inevitable that causes delays in the dispute- resolution process under the provisions of the LRA. If there is an underlying cause it may be because problems in the process are not addressed timeously and are then acknowledged as being the acceptable norm."

13.5 In regard to the Labour Court and Labour Appeal Court, Judge van der Westhuizen remarked that: "The Labour Court and Labour Appeal Court rules provide for a court-managed process to ensure that matters are heard in proper form, and expeditiously so. If practitioners cause delays, the rules provide the means for the labour courts ‘judiciary to exercise discipline and control over them. As judges we also need to produce our judgments expeditiously. Accountability and responsibility affect and concern us all."

13.6 Similar comments appear in the Constitutional Court judgments to which Judge van der Westhuizen referred:

13.6.1 In Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & Others [20091 6 BLLR 517 (CC) at paras 1 and 12, the court stated: "The case arises out of the dismissal by the applicant of the third respondent, Ms Jane Moabelo, more than ten years ago, on 26 October 1998. The time that has elapsed since the dismissal is cause for significant concern. . . We conclude by noting once again that it is a matter of concern that proceedings concerning an unfair dismissal in October 1998 should not have reached their final resolution some ten years later. It is not clear to us from the record before its where the blame for the delay lies (and so far as we can discern it does not lie singly), and so we can take the matter no further now."

13.6.2 And in Strategic Liquor Services v Mvumbi NO & Others (2009) 30 lU 1526 (CC) at paras 12-13, the court held as follows: "Some comment is necessary. First, the delay. It is lamentable that so many delays occurred, some (‘though not all) attributable to judicial management of the employer's case. The Supreme court of Appeal has recently (in not incomparable circumstances, where the Labour Appeal court took more than 15 months to deliver judgment deplored what it called ‘systemic delays' in the labour courts. It pointed out that:

‘The entire scheme of the LRA and its motivating philosophy are directed at cheap and easy access to dispute-resolution procedures and courts. Speed of result was its clear intention. Labour matters invariably have serious implications for both employers and employees. Dismissals affect the very survival of workers. It is untenable that employees, whatever the rights or wrongs of their conduct, be put through the rigours, hardships and uncertainties that accompany delays of the kind here encountered. It is equally unfair that employers bear the brunt of systemic failure.'

This court has recently dealt with a matter where the Labour Appeal Court delivered judgment more than two and a half years after oral argument was concluded before it, and the comments of the Supreme court of Appeal must be endorsed."

13.7 The "systemic" failures include, but are not limited to, the inordinately long periods that lapse between filing a review application in the Labour Court and the Labour Court hearing the review application; the delays caused by Judges taking an inordinate amount of time before handing down judgments; the long delay between noting an appeal to the Labour Appeal Court and the hearing of that appeal by the Labour Appeal Court, and the time taken by judges of the Labour Appeal Court to hand down judgments.

13.8 Despite the appeals by the Supreme Court of Appeal and Constitutional Court to the Judge President and others to rectify this unacceptable situation, little evidence can be found showing positive results of steps that may have been taken by the candidate to address these problems.

13.9 It would not be unfair on the candidate to note that the "systemic" delays took place during and continued until (and beyond) the candidate's term of office as Judge President ended. It would be appropriate for the Commission to question the candidate on his opinion on the recently proposed amendments to the Labour Relations Act directed at ensuring that judges of the Labour Court and Labour Appeal Court hand down judgments within defined periods of time. It may well be argued that these legislative interventions are a direct product of the poor manner in which the Labour Court and Labour Appeal Court was run while under the candidate's stewardship as well as it may be argued that a Judge President has a vital role to play in monitoring the pace at which Judges under his control produce judgments, ensure that cases are enrolled promptly and to intervene when delays occur.

13.10 Notably, the candidate fails to make any mention of the criticism directed at him and other presiding officers in the judgments of the Constitutional Court and Supreme Court of Appeal referred to above. Moreover, the candidate has refrained from expressing a view on whether the delays in finalising Labour Court/Labour Appeal processes are indeed "systemic" and, if so, explaining what, if any, steps he took to address this situation during his lengthy tenure as Judge President.

14 The candidate's reputation for integrity and ethical behaviour

14.1 The candidate enjoys a reputation for integrity and ethical behaviour.

14.2 There are, however, two incidents which are worthy of further scrutiny:

14.2.1 In an article published five years ago, on 23 April 2007, on the Moneyweb website, it was reported that questions had been raised in Parliament about the appropriateness of transport and living allowances paid to the candidate in his capacity as Judge President of the Labour Court (see here). The article states that the candidate had been paid R1 275 493 in transport and living allowances over a five year period on top of a salary of R704 475 per annum. A copy of the article is attached marked "A".

14.2.2 In the recent matter of Hiophe v Premier of the Western Cape Province, Hiophe v Freedom Under Law & Others (CCT 41/il, CCT 46/11) [20121 ZACC 4 (30 March 2012), the candidate did not disclose, in advance of the hearing of that matter, that he had been involved in earlier attempts to mediate the dispute between the judges of the Constitutional Court and Hlophe JP. That fact was only disclosed after the hearing, and shortly before judgment was handed down. Although none of the parties sought his recusal once he disclosed his interest in the proceedings, the matter ought to have been raised timeously so that if parties had wished to, they could have sought his recusal prior to the candidate participating in the process of preparing a judgment. This is a serious matter, and ought to be raised with the candidate.

15 The candidate's judicial temperament

15.1 The candidate is viewed as an ideal judicial officer in whose court practitioners enjoy appearing. While known to put issues the candidate has concerns with to practitioners in a firm manner, the candidate has a reputation for allowing practitioners adequate speaking opportunities to address the candidate in response to the candidate's queries.

15.2 Presiding over an appellate body has seen the candidate display excellent listening and debating skills while exhibiting a full command and understanding of the pleadings and heads of arguments on entering a courtroom.

16 The candidate's commitment to human rights, and experience with regard to the values and needs of the community

16.1 The candidate has, through his repeated references to Constitutional Court judgments and constitutional principles, displayed a firm commitment to advancing the cause of a constitutional state founded on constitutional principles.

16.2 An example of the candidate's empathy and understanding of the needs and challenges faced by the poor in our community was demonstrated in a matter where the candidate showed empathy for the plight of an individual employee found guilty of theft by eating food belonging to his employer. While the candidate found that such behaviour was unacceptable and deserving of punishment, the candidate determined that the level of sanction ought to be informed by the personal circumstances of the employee (see Shoprite Checkers (Ply Ltd) v CCMA & Others [2008] 12 BLLR 1211 (LAC)).

17 The candidate's potential

17.1 The candidate has the potential to contribute meaningfully in debates in the Constitutional Court - during sittings and in chambers. The clear albeit not always concise manner in which the candidate is able to communicate complex legal and societal issues in judgments will ensure that the constitutional principles articulated by the constitutional court in judgments penned by the candidate are well understood by all.

18 The message that the cajadidate's appointment would send to the community at large

18.1 The candidate has demonstrated his independence, clarity of thought and commitment to increasing both his own knowledge and the development of the law.

18.2 We consider that his appointment would send a favourable message to the public that the JSC is committed to appointing judges of calibre who contribute to the transformation of the judiciary.

18.3 We note, however, that there are already four judges appointed to the Constitutional Court who have specialist knowledge of labour law (namely, Mogoeng CJ, Nkabinde J, Cameron J and Froneman J). It is important that the Constitutional Court is, and is perceived to be, a Court whose judges are familiar with and specialised in diverse areas of the law. This consideration becomes particularly important in light of the proposals to constitute the Constitutional Court as the apex court. Those considerations may militate against the candidate's appointment.


(Cases marked with * were considered in preparing these comments but were not written by the candidate)

Reported decisions

( Modise & Others v Steve ‘s Spar Blackheath (2000) 21 lU 519 (LAC)

Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services & Others (2008) 29 lU 2709 (LAC)

* Shoprite Checkers (Ply) Ltd v Commission for Conciliation, Mediation & Arbitration & Others 2009 (3) SA 493 (SCA); (2009) 30 lU 829 (SCA); [2009] 7 BLLR 619 (SCA)

* Republican Press (Ply.) Ltd v CEPPWA WU & Others 2008 (1) SA 404 (SCA); (2007) 28 lU 2503 (SCA)

* Billiton Aluminiu,n SA Ltd T/A Hillside Aluminium v Khanyile & Others (2010) 31 lU 273 (CC)

* Netherburn Engineering CC 1/a Netherburn Ceramics v Mudau NO & Others [2009] ZACC 10; [2009] 6 BLLR 517 (CC); (2009) 30 lU 1521 (CC)

* Strategic Liquor Services v Mvumbi NO & Others [2009] ZACC 17; (2009) 30 lU 1526 (CC)

Unreported decisions

Sishen Iron Ore Company (‘Pty,) Ltd v Minister of Mineral Resources & Others [2012] ZAGPPHC 2 (3 February 2012)

Agri Wire (‘Ply, Limited & Another v commissioner of the competition Commission & Others [2011] ZAGPPHC 117 (5 July 2011)

Maphango & Others v Aengus L4fesiyle Properties (Pty,) Ltd [2012] ZACC 2(13 March 2012)

Hiophe v Premier of the Western Cape Province, Hiophe v Freedom Under Law & Others [2012] ZACC 4 (30 March 2012)

Judgments upheld on appeal

All the below mentioned judgments written by the candidate are seminal and of fundamental significance to labour law jurisprudemice:

National Education Health and Allied Workers Union v University of Cape Town & Others 2003 (3) SA 1 (CC)

Xinwa & Others v Volkswagen of South Africa (‘Pty,) Ltd 2003 (6) BCLR 575 ; 2003 (4) SA 390 (CC); [2003] 5 BLLR 409 (CC)

Sidumo & Another v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 lU 2405 (CC)

CUSA v Tao Ying Metal Industries & Others 2009 (2) SA 204 (CC); 2009 (1) BCLR 1 (CC); [2009] 1 BLLR 1 (CC); (2008) 29 lU 2461 (CC)

Equity Aviation Services (Ply) Ltd v Commission for Conciliation, Mediation and Arbitration & Others 2009 (1) SA 390 (CC)

Aviation Union of South Africa & Another v South African Airways (‘Pty, Ltd & Others 2012 (1) SA 321 (CC)

Judgments overturned on appeal

Edgars Stores Limited v SACCA WU (1998) 19 lU 771 (LAC)

CIWUv Johnson & Johnson (1999)20 lU 89 (LAC)

Bader Bop (Pty, Ltd v Numsa 2003 (3) SA 513 (CC)

Gordon v Department of Health: KwaZulu-Natal (2008) 29 lU 2535 (SCA)

Shoprite Checkers (Ply Ltd) v CCMA & Others [2008] 12 BLLR 1211 (LAC)

Transcribed from PDF. As such there may be small errors in the text. Please check against the original.

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