Current Position: Deputy Judge President of the Western Cape Division of the High Court
Appointed: April 2016
The Western Cape High Court’s deputy judge president has spent an entire year acting at the Constitutional Court. She is one of few judges to have had such a privilege during a long period of vacancies being left open at the court so as to “widen the pool of candidates”, according to Chief Justice Mogoeng Mogoeng.
It was surprising that Rahube v Rahube and Another, which appeared a no-brainer heard on May 17, 2018, was only delivered on October 30, 2018. In that case, the Constitutional Court was asked to confirm the unconstitutionality of Section 2 (1) of the Upgrading of Land Tenure Rights Act.
The section prohibited people who had substantial interest in land, but were not certificate or deed holders, from acquiring ownership of those properties. The exclusion was inherently gendered because, in terms of the apartheid-era proclamation, women could not be the head of a family, and thus, could not have a certificate or deed of grant registered in their name.
Goliath found that to read the proclamation as gender-neutral “would not cure the discrimination that occurred previously [during apartheid] and, since the Upgrading Act is based on the position as it was during apartheid, would not render the Act constitutionally compliant.”
The section was held to be constitutionally invalid due to its inconsistency with section 9(1) of the Constitution, the right to equality. Goliath held that, as it was possible that property ownership since the enactment of the Act may have ended up vesting in African women, it was necessary to limit the retrospectivity of the declaration of invalidity. The list of exceptions provided by the high court was extended, and the suspension of the declaration of invalidity for 18 months was confirmed.
In 2015, three opposition parties challenged the rules of the national legislature regarding a tabling of a motion of no confidence in President Jacob Zuma in Tlouamma v Speaker of Parliament.
The application, heard in the Western Cape High Court, also challenged the decision by the house speaker, Baleka Mbete, not to schedule the vote before the end of that parliamentary term and sought to have the court declare that such votes be conducted by secret ballot.
Writing a unanimous judgment for a full bench, Goliath was mindful of the separation of powers doctrine in dismissing the case and noted that the court “would be unduly prescriptive to the Speaker and the National Assembly as to how and when to schedule its own business,” if it found for the opposition parties.
Goliath found that, as the case raised matters of constitutional import and “indeed adds texture to what it means to be living in a constitutional democracy,” each party should pay its own costs.
Her mindfulness of the separation of powers doctrine was, however, considered unduly deferential to parliament by the Constitutional Court in its ruling in the 2017 matter, United Democratic Movement v Speaker, National Assembly and Others.
In that case Mbete had argued that neither the Constitution nor the rules of parliament allowed her to authorise a vote by secret ballot in yet another motion of no confidence against Zuma. The Constitutional Court held this view was mistaken, and that “[t]he only real constraint that stood in her way was the Tlouamma decision.” The court found the speaker did have the power to authorise a vote by secret ballot in appropriate circumstances, and that “[t]o the extent that Tlouamma might have been understood to have held that a secret-ballot procedure is not at all constitutionally permissible, that understanding is incorrect.”
Goliath is no stranger to the media spotlight, having adjudicated some of the country’s most high-profile and contentious criminal cases. These included convicting artist Zwelethu Mthethwa of kicking and beating to death sex-worker Nokuphila Kumalo in 2013, and the rape and murder case of Bredasdorp teenager Anene Booysen.
The latter trial had especially captured the public’s attention and sympathy, and in sentencing the perpetrator, Johannes Kana, to two concurrent life terms, Goliath said: “You show no remorse for these actions. Instead, you went ahead and tried to hide your complicity in the murderous attack on Anene.”
Goliath was one of seven female judges featured in the documentary film, Courting Justice, which examined the challenges women face in the judiciary. In her successful April 2016 interview for appointment as Western Cape deputy judge president she told the Judicial Service Commission that she “cannot recall one instance when female counsel appeared” before her on a commercial matter, saying this demonstrated there was, “regretfully”, no transformation at the Cape Bar. This, she said, was one of the indicators that the Bar should provide support, assistance and mentoring to “address the paucity of black female advocates specifically”.
The fifty-four-year-old attended Athlone High School and obtained a BA. LLB at the University of Western Cape and her LLM degree and certificate in Labour Law at the University of Cape Town. She practiced as an attorney at her own firm from 1990 to 2005, and was appointed to the Western Cape Bench on January 1, 2006.
She has an interest in human rights issues and has published in the South African Legal Journal on topics including the rights of prisoners of war, gun control, and juvenile sentencing and life imprisonment.
April 2016 Interview:
April 2016 Interview Synopsis:
Goliath was nominated for appointed as deputy judge president of the Western Cape division after a rather tame interview compared to some of her other colleagues.
Responding to a series of questions posed by Supreme Court of Appeal president Lex Mpati that related to the administrative elements of the position, Goliath said:
She would first seek out from offending judges the reasons for overlong reserved judgments by judges, before remedying by restructuring work programmes and providing whatever other support necessary. If the problem persisted, she would eventually report the judges to the office of he chief justice.
Described herself as a “team player who gets in well with people” and capable of ensuring collegiality and unity on the Western Cape Bench.
Said she “cannot recall one instance in when female counsel appeared” before her on a commercial matter, and mourned that this demonstrated there was, “regretfully”, no transformation at the Cape Bar. This, she said, was one of the indicators that the Bar should provide support, assistance and mentoring to “address the paucity of black female advocates specifically”.
Would allocate cases to judges in the division according to various criteria, including matching complex cases with senior judges, considering the nature of a case, and if it were in the oubkic interest, “ensure you should have a diverse Bench”, and ensuring that judges did get exposure to a range of different types of legal matters so that each could gain experience and grow as a judge.