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April 2021 DGRU Report V2

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April 2021 DGRU Report V2 SUBMISSION AND RESEARCH REPORT ON THE JUDICIAL RECORDS OF NOMINEES FOR THE JSC SITTING IN APRIL 2021 VOLUME 2: HIGH COURT AND LABOUR COURT 181 INDEX TO THE REPORT: VOLUME 2 Note: for an explanation of the methodology of the report and submissions on issues relating to process and criteria, please see volume 1 of the report. Eastern Cape High Court (Mthatha) Advocate Nceba Dukada SC 184 Judges Johannes Daffue 189 Free State High Court (Deputy Judge President) Judge Martha Mbhele 195 Judge Soma Naidoo 201 Gauteng High Court (Deputy Judge President) Judge Roland Sutherland 207 Advocate Allyson Crutchfield 216 SC Mr Dario Dosio 221 Advocate Niel de Villiers SC 228 Judge Nelisa Mali 235 Advocate GM Malindi SC 241 Mr Patrick Malungana 248 Gauteng High Court Mr Norman Manoim 254 Mr Mandla Mbongwe 259 Mr Anthony Millar 264 Advocate Cassim Moosa 271 Mr Vuyo Mtati 277 Ms Mashidu Munzhelele 283 Advocate Portia Phahlane 288 Advocate Brad Wanless SC 293 Advocate Bruce Bedderson 298 Mr Burt Laing 302 KwaZulu – Natal High Court Advocate Rob Mossop SC 307 Mr Vusi Nkosi 312 Advocate Carol Sibiya 318 Advocate Jacques Basson 323 Labour Court Mr Vusimuzi Nkosi 326 Advocate Tsungai Phehane 328 182 Advocate Francois Van der 332 Merwe Judge TP Mudau 335 Limpopo High Court (Deputy Judge President) Judge George Phatudi 342 Judge Violet Semenya 348 Mr André Peterson 354 North West High Court Advocate Frances Snyman SC 359 Northern Cape High Court (Deputy Judge Judge Violet Phatshoane 364 President) Advocate Lawrence Lever 372 Northern Cape High Court Advocate Sibongile Nxumalo 378 Ms Janine Snyders 382 Mr Matthew Francis 386 Advocate Bryan Hack 392 Mr Selwyn Hockey 398 Advocate Penelope Magona – 402 Western Cape High Court Dano Advocate Nobahle Mangcu- 406 Lockwood Advocate Fred Sievers SC 411 Mr Daniel Thulare 417 183 ADVOCATE NCEBA DUKADA SC ADVOCATE NCEBA DUKADA SC BIOGRAPHICAL DETAILS Date of birth: 18 January 1958 B Juris, Walter Sisulu University (1983) LLB, University of Natal (1988) LLM , University of Natal (Not completed) CAREER PATH Acting Judge, Eastern Cape High Court (Mthatha, Grahamstown and Port Elizabeth) and Gauteng High Court. Department of Justice, Transkei Practicing Advocate (June 1990) Assistant Magistrate (June 1984-1985) Prosecutor (1984) Clerk (1978 - 1980) Magistrate, Cala; Centane and Mthatha (1984 - 1986) Chairperson of Transkei Branch, National Association of Democratic Lawyers (1990 - ) Member, Society of Advocates of Transkei (1990 - 2008) Member, Society of Advocates of Johannesburg (2009- to date) Member, Road Accident Fund (June 2000 - October 2003) Member, National Lotteries Board Member, One Life Church-Westville 184 ADVOCATE NCEBA DUKADA SC SELECTED JUDGMENTS PRIVATE LAW MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH, EASTERN CAPE PROVINCE V YN OBO EN (3651/15) [2020] ZAECMHC 46 (23 JULY 2020) Case heard 18 May 2020; Judgment delivered 23 July 2020. This was an appeal against the judgment of the court a quo where the appellant had been found vicariously liable for the negligent care and treatment by nurses in the delivery of a child, and ordered to compensate the respondent for damages that resulted from that negligence. [Paragraph 1] The respondent delivered a child at Sipetu Hospital and the court a quo found that the negligence of the medical personnel had resulted in asphyxia leading to the child suffering permanent cerebral palsy. [Paragraph 2] At the trial, the appellant had denied any negligence, arguing that the child had been born normal and did not suffer the injury whilst at the hospital. [Paragraph 7] However, on appeal the appellant changed its defence, arguing that the child was not born normal and that the injuries had been sudden and unforeseeable. [Paragraph 10] Dukada AJ evaluated the evidence and held that it was clear and unambiguous that if the nurses had monitored the foetus' heartrate, on the probabilities, there would have been warnings that the foetus was not well long enough before the acute profound damage, for the staff to have taken steps to avert the disaster. [Paragraph 17] All the experts were in agreement that had the fetal heartbeat been monitored as required, its distress would have been established and the proper steps taken. [Paragraph 30] The court held that the failure of the nurses to monitor the respondent and the foetus as per the Guidelines for Maternity care in South Africa and to take necessary action was overwhelmingly negligent. [Paragraph 26] In dismissing the appeal, Dukada AJ held that the appeal was flawed in law as the appellant could not raise a new defence on appeal, that they had not raised during the trial. [Paragraph 38] “I do not find any fault to the approach by the court a quo in this matter. It evaluated the entire evidence presented before it correctly. …. The raising of a defence of acute profound damage for the first time on appeal and in the absence of evidence by the Defendant in the court a quo to support such as defence constitutes a devastating flaw in the entire appeal.” [Paragraph 37] 185 ADVOCATE NCEBA DUKADA SC ADMINISTRATIVE JUSTICE JENKINS V GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA & ANOTHER 1996 (3) SA 1083 (TK SC) Case heard 14 December 1995; Judgment delivered 18 January 1996 The applicant had been employed by the Transkei Mining Corporation and was provided with a vehicle for her official and private trips as well as a free unfurnished house that was leased by the corporation on her behalf. The corporation was closed down and taken over by the Ministry of Commerce, Industry and Tourism. The applicant continued enjoying the benefits of the car and the house for more than 18 months after the corporation was closed down, and then the benefits were summarily withdrawn. She had obtained a rule nisi calling upon the respondents to show cause why they should not return the benefits. The respondents had launched a counter application for an order directing the applicant to return the vehicle. [Page 1084, Paragraph C - D] Dukada AJ held that a liberal approach should be adopted in the interpretation of s 24(b) of the Interim Constitution which provided for the right to fair administrative action, and that “[t]he principle of legitimate expectation is deployed in administrative law to ensure that administrative decisions are fair in all respects.” [Page 1093, Paragraph F] “The correct interpretation of the meaning of the “the right to procedurally fair administrative action” entrenched in s 24(b) of the Constitution must be a “generous” one avoiding what has been called the austerity of tabulated legalism, suitable to give individuals the full measure of the fundamental rights” [Page 1093, Paragraph C - D] Dukada AJ held that the continued benefits to the applicant for more than 18 months had created a reasonable and genuine expectation that she would be given a hearing were the government to eventually decide to withdraw such benefits. [Paragraphs A - B] The rule nisi granted was confirmed and the counter application by the respondent was dismissed. [Page 1095, Paragraph C] CIVIL PROCEDURE KES V NCX AND ANOTHER (2419/19) [2020] ZAECMHC 43 (21 JULY 2020) Case heard 26 June 2020; Judgment delivered 21 July 2020 The applicant was the daughter of the late K, and sought orders to evict the first respondent from certain premises. [Paragraph 1] The first respondent opposed the application stating that she had 186 ADVOCATE NCEBA DUKADA SC been the wife of the late K for more than thirty- two years. The applicant contended that the first respondent was only her late father’s girlfriend and not his wife. [Paragraph 4] The first responded raised a plea of lis alibi pendens, that the same relief sought by applicant in the current proceedings was identical to the one already claimed by the applicant in the review proceedings which were pending before the same court. [Paragraph 9] The applicant sought to distinguish the two proceedings, averring that in one case, she was litigating in her personal capacity, while in the other she was litigating in her capacity as executrix of the estate of her late father. [Paragraph 12] Dukada AJ upheld the point in limine and dismissed the application, holding that the distinction made by the applicant was artificial and more of form than substance: “In these proceedings as well as the review proceedings already pending in this court, the applicant is suing the first respondent for an identical relief i.e to evict the first respondent from the premises in question. …” [Paragraph 12] The application was dismissed, with costs to be recovered from the estate. [Paragraph 16]. NATIONAL COUNCIL OF SOCIETIES FOR THE PREVENTION OF CRUELTY TO ANIMALS V AL MAWASHI (PTY) LTD AND OTHERS (995/2020) [2020] ZAECGHC 118 (15 OCTOBER 2020) Case heard 6 August 2020; Judgment delivered 15 October 2020 The applicant was a statutory body, with objectives including prevention of ill-treatment of animals. [Paragraph 1] The applicant sought to interdict the first and second respondents from transporting sheep from East London harbour to any area north of the equator, pending an application seeking a total ban on the practice of transporting live sheep from anywhere in South Africa to anywhere north of equator by anyone on any vessel during any time of the year. [Paragraph 4] The applicants needed to prove prima facie right, a well-grounded apprehension of irreparable harm, a balance of convenience and that they had no other satisfactory remedy to succeed in their application for interim interdict. [Paragraph 8] Dukada AJ held that the applicants failed to prove their case as they raised incidents that took place in 2019, and there was no evidence presented that what occurred in 2019 would likely occur in 2020: “The two occasions when the sheep of the First and Second Respondents were inspected by the regulatory authorities passed muster to transport sheep from East London Harbour to the Equator.
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