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Judge Elizabeth Baartman

Candidate Profile:

A judge on the Western Cape Bench since 2009, Baartman has heard cases including the urgent application brought by Primedia and other media organisations, to ensure an uninterrupted television feed from parliament – this followed the cutting of the parliamentary feed during the 2015 State of the Nation address when MPs were forcibly kicked out of the house.

While acting at the Supreme Court of Appeal, Baartman has sat on a full bench to hear matters involving South Africa’s celebrity set.

These have included the National Prosecuting Authority’s appeal against Paralympian murderer Oscar Pistorius’ initial culpable homicide conviction and AbaThembu King Buyelekhaya Dalindyebo’s application to set aside the culpable homicide verdict against him for flogging members of his clan and burning their homes. Written by Judge Eric Leach, the former was successful and upgraded to a murder conviction, the latter, which Baartman co-wrote with Judge Mohamed Navsa, was not.

During one of her 2015 acting stints at the SCA a full bench was asked to decide whether security provided in favour of the municipality for monies owed for services delivered in respect of fixed property, was extinguished when the property was sold at a sale in execution and subsequently transferred to the purchaser.

The case, City of Tshwane Metropolitan Municipality v PJ Mitchell required the judges to interpret Section 118 (3) of the Municipal Systems Act and the hypothec (a right established by law over a debtor’s property that remains in the debtor’s possession) it create

Baartman, (with Mpati P, Bosielo and Saldulker JJA concurring and Zondi JA dissenting) ruled that there could be no distinction drawn “between property sold either at a sale in execution or in a private sale when considering the question whether the hypothec created by s 118(3) survives transfer”.

The found that the lower court had “erred in concluding that the appellant’s statutory hypothec had been extinguished by the sale in execution and subsequent transfer of the property into the name of the respondent”.
The appeal was upheld. In his dissent, Zondi JA held that under common law, a “burden on a property does not survive the transfer of the property from one person to another where such transfer takes place pursuant to a sale in execution and the creditors holding a hypothec ‘have kept silent’.” Zondi JA held that s 118(3) could and should be interpreted consistently with this common law position.

From Hangberg in Cape Town, Baartman attended Grassy Park High School and obtained her LLB from the University of the Western Cape in 1992. She has previously worked as a prosecutor in the Asset Forfeiture Unit, and as a magistrate.

In 2007, Baartman was selected to participate in the National Training Programme for Aspirant Women Judges, before being appointed as a judge to the High Court in Cape Town in 2009.

During that Judicial Service Commission interview, she spoke of her “lengthy” struggle with the National Prosecuting Authority to be allowed to act as a judge. The NPA, according to Baartman, believed her acting stints had constituted a conflict of interest and had asked her to repay the money earned over that period. She eventually resigned to pursue a career in the judiciary: “Once I applied my mind it, I could see the point and I resigned,” she said.

This will be her second interview for a position at the appellate court — she was unsuccessful in 2016. During that interview, now retired SCA president Lex Mpati said he had canvassed colleagues in the division about her readiness for permanent appointment and the general consensus had been that she “needed more honing with more acting stints”.

Baartman was not having that: “I absolutely don’t agree with you, if you look at my experience in the courts, not just at the SCA all the way back [to her experience as a prosecutor, magistrate and a judge in the lower courts] I have written well-reasoned judgments,” she said.

At the time she also told the commission that she believed in “judicial activism” but only “as long as we stay within the bounds of the law. The Constitution makes provision for us to do that and where necessary I have done that.”

April 2018 Interview Synopsis:

Concerns about Judge Baartman’s lack of experience in general, and her limited exposure to adjudicating constitutional matters in particular, proved one of the sticking points for the Judicial Service Commission (JSC) during her interview.

Supreme Court of Appeal (SCA) President Mandisa Maya first raised the issue with Baartman with other commissioners following up. Her response remained consistent: that she was ready during her first (unsuccessful) interview for a position at the appellate court in 2016 and she still was. Baartman argued that her exposure to a variety of legal cases in the high court stood her in good stead to make the transition to the appellate court.

Pointing out that only three of her judgments were successfully appealed against since she joined the high court in 2008 Baartman said “that must, with respect, show a consistency to get it right the first time”.

Chief Justice Mogoeng Mogoeng delved into the “resistance” that Baartman had faced when asked to act at the SCA and her responses suggested that the division was still wracked by a hierarchical haughtiness.

Baartman said “once you enter the SCA, some people forget you are a judge… You don’t come from the street, you are a professional…”

Mogoeng followed up asking how this attitude of “this is our space” and that some acting judges were “intruders of sorts” manifested in the appellate court?

Baartman said the antipathy included “the way people deal with you as a colleague” and the manner in which judgments were allocated to acting judges as a scribe. She said that if acting judges were “considered worthy” allocation was “normal” but if not “people are then later surprised that you can write”.

Acknowledging some of the attitudes and practises Baartman mentioned existed in her court, SCA President Mandisa Maya, said these were “things I am fighting to change”. She then asked Baartman for some practical steps that she could take.

Baartman said everything started with the court roll. She said it was “startling” when she found that some senior judges had nothing to write for an entire term, which “cannot be right”. She added that ensuring that every judge received a variety of cases would also help confidence levels for inexperienced and acting judges while also developing the breadth of their experience: “I saw people’s confidence levels dropping when the roll came out,” Baartman commented on her previous acting stint at the appellate court.

KwaZulu-Natal Judge President Achmat Jappie, who sits on the commission representing the heads of courts, asked Baartman her views on the value of a dissenting judgment.

Baartman said that if the dissent was an issue of law or principle, “then a dissent is very important — it helps develop the law”.

At the end of her interview Mogoeng enquired as to what convinced former Constitutional Court justice Kate O’Regan to recommend Baartman for nomination. She said O’Regan and the Centre for Law and Society at the University of Cape Town must have been “moved by my involvement”, “have read my judgments” more widely than those available and “know my conduct in court”.
 

April 2016 Interview:

April 2016 Interview Synopsis:

In the initial part of her interview Baartman was quizzed on her experience of sitting  on a full Bench at the Supreme Court of Appeal and writing judgments with her colleagues — a sometimes daunting task at a notoriously no-nonsense superior court —- including dissenting judgments and how she handled having legal opinions different from her more senior colleagues.

She had come prepared, including bringing along a “photo of the weapon, in colour” that was used in a murder case in which she had dissented from the majority to apparently prove her point – eliciting a giggle or two from commissioners.

Responding to SCA President Lex Mpati that he had canvassed colleagues in the division who had suggested that Baartman “needed more honing with more acting stints”, the judge begged to differ:

“I absolutely don’t agree with you, if you look at my experience in the courts, not just at the SCA all the way back [to her experience as a prosecutor, magistrate and a judge in the lower courts] I have written well-reasoned judgments,” said Baartman, who later underlined her impression that the appellate court “gets its work from the lower courts” where she had spent “all my professional life”.

Mike Hellens SC invited Baartman to respond to the perception that the SCA “is not only unduly uncomfortable, but blunt, and that counsel doesn’t have an opportunity to fully develop arguments”.

“It differs from hearing to hearing. There are times where the issues are very narrow and the presider gives direction that these are the issues,” said Baartman.

She was also asked about her contribution to advancing transformation within the legal fraternity and whether she believed in judicial activism. Baartman cited examples of juniors she had assisted before telling the commission that judicial activism was permissible “as long as we stay within the bounds of the law. The Constitution makes provision for us to do that and where necessary I have done that.”

A judge on the Western Cape Bench since 2009, Baartman has heard cases including the urgent application brought by Primedia and other media organisations, to ensure an uninterrupted television feed from parliament – this followed the cutting of the parliamentary feed during the 2015 State of the Nation address when MPs were forcibly kicked out of the house.

While acting at the Supreme Court of Appeal, Baartman has sat on a full bench to hear matters involving South Africa’s celebrity set.

These have included the National Prosecuting Authority’s appeal against Paralympian murderer Oscar Pistorius’ initial culpable homicide conviction and AbaThembu King Buyelekhaya Dalindyebo’s application to set aside the culpable homicide verdict against him for flogging members of his clan and burning their homes. Written by Judge Eric Leach, the former was successful and upgraded to a murder conviction, the latter, which Baartman co-wrote with Judge Mohamed Navsa, was not.

From Hangberg in Cape Town, Baartman attended Grassy Park High School and obtained his LLB from the University of the Western Cape in 1992. She has previously worked as a prosecutor in the Asset Forfeiture Unit, and as a magistrate.

In 2007, Baartman was selected to participate in the National Training Programme for Aspirant Women Judges, before being appointed as a judge to the High Court in Cape Town in 2009.

 

During that Judicial Service Commission interview, she spoke of her “lengthy” struggle with the National Prosecuting Authority to be allowed to act as a judge. The NPA, according to Baartman, believed her acting stints had constituted a conflict of interest and had asked her to repay the money earned over that period. She eventually resigned to pursue a career in the judiciary: “Once I applied my mind it, I could see the point and I resigned,” she said.

Baartman was eventually unsuccessful in her interview.