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Advocate Fiona Dippenaar SC

Candidate profile:

The public spats between “white monopoly capital” and the Gupta family’s social media trolls were a constant during the kleptocratic tenure of former president Jacob Zuma — and sometimes ended up in court.

While acting at the Gauteng Division of the High Court last year Fiona Dippenaar adjudicated a case where Magda Wierzycka, the chief executive officer of Sygnia Asset Management, accused Mzwanele Manyi of defamation.

This followed Wierzycka offering Zuma “as much money as he wishes to have” to resign from the presidency, during an April 2017 interview with CNBC.  The proposal was deemed indecent by Manyi who railed against Wierzycka on social media, accusing her of being an “economic terrorist” and “downright racist”.

In a flurry of posts on Twitter and Facebook, Manyi claimed Wierzycka had attempted to “buy off” Zuma — tweeting that this “objectifies black people as things that can be bought”.

Continuing his haphazard treatise on identity politics and the economy, Manyi described the neoliberal Wierzycka as a “super rich White Monopoly Capitalist” and wondered whether she was related to Janusz Walus, who assassinated South African Communist Party leader Chris Hani in 1993.

In in an urgent court application, Wierzycka shouted “defamation”. Manyi shouted “freedom of speech”.

Recognising that South African law ensures the “right to freedom of speech is not “unbridled” and that a court must be mindful of the delicate “balancing act” between free speech and the protection of individual rights of dignity, Dippenaar ordered Manyi to remove the offending posts within 24 hours and prohibited him from further commenting on the matter.

Wierzycka had also sought an order ensuring Manyi was liable for damages and a declaration that his statements were defamatory and constituted hate speech. This Dippenaar referred to the Equality Court and the high court to be heard at a later date.

In the 2016 matter of Recycling and Economic Development Initiative of South Africa NPC and Another v Broadcasting Complaints Commission of South Africa, Dippenaar was asked to rule on the validity of the respondent’s procedural rules regarding complaints.

The Broadcasting Complaints Commission’s rules required a complainant to either choose between having a complaint investigated by it, or to pursue a civil claim for damages against a broadcaster. In the case of the latter, the commission may then choose not to investigate the complaint.

Noting that the Constitution required the commission “to exercise its functions in the public interest and in accordance with the principles of fairness” Dippenaar found the rule did “not operate in the interests of a complainant or a member of the public but operates in favour of a broadcaster”. That the rule, in fact, contravened the public interest and fairness requirements of the Constitution.

Granting the application, Dippenaar found the offending rule to be “unreasonable and [an] unjustifiable limitation on the constitutional right of access to courts. If a complainant is required by an organ of state to waive hi[s] right to institute an action for damages against a broadcaster without that action being judicially determined, he is deprived of his constitutional right to have his justiciable dispute decided in a fair public hearing before a court.”

Despite considerable experience acting at the high court of South Africa — going back to 2010 — Dippenaar’s judgment writing does require a level of sharpening for clarity.

Dippenaar completed all her academic degrees at the University of Johannesburg (formerly the Rand Afrikaans University). In 1986 she completed a B.Comm (Law), followed by an LLB (1988), and an LLM (Banking) in 1992. Dippenaar worked as an advocate from 1992-2009, when she was conferred silk (senior counsel).

In her application form to the Judicial Service Commission (JSC) Dippenaar admits to being reprimanded for unprofessional conduct in the 1994 matter of State v Visser. The complaint related to her failure to ensure her timeous replacement after she withdrew from the matter. There were three other complaints regarding her conduct, all of which were dismissed.

 
October 2018 Interview

October 2018 Interview Synopsis

Her vast experience in commercial law and liquidation matters appeared to stand Advocate Fiona Dippenaar SC in good stead during her interview for a position on the Gauteng Division of the High Court, where, as Judge President Dunstan Mlambo pointed out, there were “a lot” of these types of cases.

Dippenaar was eventually appointed, however she had to explain the nature of the three complaints which had been lodged against her during her time at the Bar early on in the interview.

All three had been dismissed by the General Council of the Bar, but they did point to the often acrimonious nature of litigation in South Africa including, as Dippenaar revealed in one instance, her instructing attorney getting into a “physical altercation outside court” with his opponent.

Dippenaar was asked by Advocate Dali Mpofu SC, representing the advocates’ profession on the Judicial Service Commission (JSC), what she had done during her career to aid transformation, and how her appointment would contribute to a vision of a demographically representative judiciary.

She said her appointment would address “diversity and gender representation” on the Bench. Dippenaar added that since she was “able to” she had briefed female juniors including agreeing to “fee sacrifices in order to accommodate women” and sometimes paid female juniors “out of my own pocket” to ensure they worked on matters with her. She said she had focused on black female juniors especially.

During her 37-minute interview Dippenaar was asked to explain her approach to a defamation case she had heard in the Equality Court between a well-known businesswomen and a former government spin-doctor/ businessman thought to be close to former president Jacob Zuma.

She said when considering cases of this nature judges had to tread a fine line between the right to dignity and the right to freedom of expression in South Africa, which was not untrammelled.