Capacity: Advocate
Date appointed: Admitted as an advocate in 2001 (senior counsel 2011)
First appointed as a judge: 1995 – 2000 (limited term, Land Claims Court)
Gender: Male
Ethnicity: White
Date of Birth: 11 July 1960
Key judgments:
- FNM v The Refugee Appeal Board (71738/2016) [2018] ZAGPPHC 532; [2018] 4 ALL SA 228 (GP); 2019 (1) SA 468 (GP) (12 JULY 2018)
- Ashanti Wine And Country Estate (Pty) Limited v Smith (LCC245/2016, LCC251/2016, LCC246/2016, LCC252/2016, LCC236/2016, LCC253/2016) [2017] ZALCC 8; [2017] 3 ALL SA 709 (LCC) (28 FEBRUARY 2017)
- Umso Construction (Pty) Limited v City Of Johannesburg And Another (2018/17263) [2018] ZAGPJHC 522; [2018] 4 ALL SA 507 (GJ) (31 MAY 2018)
- Airports Company South Africa Limited v Airport Bookshops (Pty) Ltd T/A Exclusive Books (31580/2014) [2015] ZAGPJHC 154; 2016 (1) SA 473 (GJ); [2015] 3 ALL SA 561 (GJ) (3 JULY 2015)
Candidate Bio:
In a 2000 interview for the Legal Resources Centre Oral History Project Advocate Alan Dodson SC observed that South Africa’s relatively new Constitutional Court “proved to be a highly successful court, it’s proved a willingness to be innovative, it’s proved a willingness to be open to listen to cases that are brought by poor and disempowered people, it hasn’t developed a jurisdiction which has the effect of excluding people who lack resources. So, it’s also, and also very importantly it’s made the development of its socio-economic rights jurisprudence a very important part of its work. And it’s gone about it in a careful and creative way.”
Whether Dodson will be able to step into the green robes of his predecessors of a court he has open admiration for will be decided when he is interviewed in April 2021.
Dodson has experience in adjudicating a wide range of matters during several acting stints in the Gauteng High Court (Johannesburg Division), from civil and political rights to commercial law issues.
In the 2018 high court matter of FNM v The Refugee Appeal Board and Others, the applicant, a citizen of the Democratic Republic of Congo (DRC), sought to review a decision of the Refugee Appeal Board (RAB) which upheld the rejection of his claim for refugee status.
The applicant claimed he was forcefully conscripted into the DRC army and was captured by rebels following his desertion. He claimed that he would be punished for desertion if he returned to the DRC. The Appeal Board thought otherwise.
Dodson found the Board had acted in a procedurally unfair manner in placing the burden of proof on the applicant and making “no reference to the required inquisitorial and facilitative approach.”
He further found that, before relying on new country of origin information, the board should have obtained a response from the applicant to the information, but had failed to do so. It had also failed to consider section 3(a) of the Refugees Act, relating to fear of persecution and disruption of public order, as a basis for refugee status.
Dodson held that the RAB had made “no attempt to conduct any rational analysis of the country of origin information as against the provisions of section 3(b) and the applicant’s particular circumstances. The RAB jumped to a conclusion” without establishing how safe to was for the applicant to return to the DRC.
The board’s decision was set aside and Dodson found that the applicant qualified for refugee status. He went further to hold that the “serious delays in the decision-making process” reflected “incompetence” on the board’s part.
“The quality of its written decision is poor. It is internally contradictory, unclear, indicative of a lack of understanding of the governing legislation and lacking in reasoned analysis of the information available to it. This should not be the case when the RAB is meant to represent the apex of the administrative decision-making process.” An order of substitution was granted, declaring that the applicant qualified as a refugee.
In the 2017 Land Claims Court matter of Ashanti Wine and Country Estate (Pty) Ltd v Smith and Others Dodson dealt with an appeal against a Magistrates’ Court’s dismissal of eviction applications brought under the Extension of Security of Tenure Act (ESTA).
The respondents had occupied cottages on a wine farm in terms of their employment, which was lawfully terminated.
Dodson (with Canca AJ concurring) considered the requirements for termination of the right of residence under ESTA and whether the termination of the rights of residence was just and equitable.
He held that, “[g]iven the particular hardships for the respondents that would flow from an eviction”, there ought to have been an effective opportunity to make representations before the decision was taken to terminate their right of residence.
He found that the wine farm owners had failed to provide sufficient information to allow the court to assess whether there had been an effective opportunity to make representations. They had also failed to prove that a fair procedure had been followed in terminating the right of residence, he found.
Dodson concluded that while “the magistrate’s reasoning was flawed in several respects”, the order dismissing the application had been correctly made.
In dismissing the appeal, Dodson encouraged “the parties, along with the municipality and the Department of Rural Development and Land Reform, [to] actively continue to seek a long term solution to the problem of the respondents’ accommodation as well as the problem relating to sanitation.”
Dodson spent five years as a judge at the Land Claims Court (1995-2000) and also acted at the Labour Court. From 2000-2007 he served as chairperson of the United Nations Housing and Property Claims Commission. He is currently the chairperson of the Independent Regulatory Board for Auditors Disciplinary Committee — a position he has held for a decade — and a member of the Minister of Justice’s Reference Group on Land Restitution.
A member of the Johannesburg Bar since 2001, Dodson was conferred silk in 2011. His lawyering experience included a two year stint as the director of litigation at the Legal Resource Centre (2004-2006).
Born on 10 July 1960, Dodson completed his BComm (1982) and LLB (cum laude) in 1984 at the University of KwaZulu–Natal. He obtained his LLM from the University of Cambridge (1988) and a post–graduate Diploma in Tax Law from the University of Cape Town (1992).
April 2021 Interview:
April 2021 Interview Synopsis:
The hazards of chairing a meeting remotely from the North West while the majority of the Judicial Service Commission (JSC) is sat in a Sandton hotel room proved multifold on the first afternoon of interviews for positions at the Constitutional Court.
The sensation of being a straw about to enter the nostrils of Chief Justice Mogoeng Mogoeng, whose face dominated from above on three oversize Big Brother-like screens, being the least of them: There was the almost hour-long interruption of senior counsel Alan Dodson’s interview for technical glitches; what Mogoeng described as a result of a problem which “came from the streaming” and caused the surreal repetition of both his words and that of Advocate Dali Mpofu SC, who was in the midst of asking the candidate a series of questions about amendments to the Constitution and land redistribution.
The confusion and chaos during this stop-start period of the interview was made ever more surreal by the repetitive tweeting of birds from what must have been Mogoeng’s garden. If he was frustrated by the unwelcome interruptions to his interview, Dodson did not show this in the patient manner of his responses.
Having been one of the original judges of the Land Claims Court and a lawyer with vast experience in land claim cases, Dodson was quizzed at length on the one of the most divisive subjects in South Africa: land redistribution and the expropriation of land without compensation for that purpose.
The thrust of Mpofu’s line of questioning was that, according to his interpretation, “the flaw” in South Africa’s “Constitutional regime” is that “compensation is prescribed” and that social programmes focused on land distribution through the courts would inevitably fail.
Dodson agreed that “judicialising” disputes that arose from land claims were bound to lead to delays because court processes were inherently slow. Drawing on his experience as Chairperson of the Housing and Property Claims Commission set up by the United Nations Human Settlements Programme to adjudicate post-conflict property and housing claims in Kosovo, Dodson suggested that “different judicial models” would assist in clearing up backlogs.
Pointing to Kosovo’s claims process being cleared up in less than seven years, he suggested, as one alternative, that similar cases be collected to be heard and decided together so that one decision would be applicable to several cases.
Mpofu closed the passage of questioning with the quip: “That’s the end of the longest question in the history of the JSC.”
Earlier during his interview justice minister Ronald Lamola had asked Dodson whether the “compensation regime” of the Constitution “cemented the view” that “compensation should be market-based”.
Dodson said that Section 24(3) of the Constitution did allow for a range of factors” to be considered when calculating compensation which need not necessarily be concluded with a value linked to the market.
He added that, the adherence to market-related compensation appeared to be a consequence of the Constitutional Court’s 2004 majority decision in Du Toit v Minister of Transport which drew from the “outdated” 1975 Expropriation Act. Dodson noted that the case did not challenge the Expropriation Act, but that the minority judgement in that matter, penned by the then acting Chief Justice Pius Langa which “had no difficulty in applying Section 25(3) of the Constitution despite the Expropriation Act”.
He later told Economic Freedom Fighters member of parliament Julius Malema — who had asked whether the Constitution currently allowed for expropriation without compensation or not — that in applying the various Constitutional criteria to calculate compensation for land one may end up with a “zero-value property” where there would be no compensation.
Dodson told the commission that his appointment would be beneficial to the Constitutional Court since he “anticipated lots of cases [dealing with land] will come to the courts.
Several questions also dealt with whether his appointment, as a white male, would assist in transformation of the Constitutional Court and the judiciary as a whole.
Dodson response was that while the Constitution enjoined the country’s apex court to “broadly reflect” the demographics of the country, Section 174(5) of the Constitution required a “range of influencers and not simply a range of pigmentation” and that judges also, need not be appointed solely from the judiciary.
Dodson was also asked about his diagnosis with an extremely benign form of cancer (which he assured the JSC would not affect his work), whether having a wife who is a judge of the high court in Gauteng would not encourage gossip (no) and his military criminal record (he was conscripted during apartheid and court-martialed for refusing to do patrols in the townships during the 1980s).
