Capacity: Advocate
Gender: Female
Ethnicity: White
Date of Birth: February 1972
Qualifications: B.Iuris (1993) LLB (1995) (UFS), LLM (Corporate Law) (2000) (UNISA)
Key Judgments:
- Taxpayer B v Commissioner for the South African Revenue Service 85 SATC 388 (29 November 2022)
- Hogue v Minister of Home Affairs [2022] 4 All SA 129 (WCC)
- Weinert v Municipality of the City of Cape Town [2023] 1 All SA 536 (WCC)
- Pentagon Financial Solutions (Pretoria) (Pty) Ltd v Pieter Willem Basson [2023] 3 All SA 560 (WCC)
- Van Der Westhuizen v Akarana Homeowner’s Association 2024 (1) SA 301 (WCC)
Candidate Biography (Updated September 2024)
Advocate Phillipa Van Zyl is a practicing advocate of the Cape Bar, having taken up chambers in 2001. She qualified from the University of the Free State with her B.Iuris in 1993, and her LLB in 1995, whereafter she worked as a tutor in the Law Faculty of the University of Cape Town, before becoming a legal administration officer for the Western Cape provincial government from 1997 to 1998, during which time she presided over disciplinary hearings, prepared opinions, and reviewed and commented on draft legislation. She thereafter became a legal advisor for the Blaauwberg Municipality from 1998 to 2000.
Whilst practicing as an advocate, she is member of the Arbitration Foundation of South Africa (AFSA), the Cape Bar Advocacy Training Committee, and the Cape Bar Judicial Appointments Review Committee. She has appeared in numerous cases in the Constitutional Court and Supreme Court of Appeal. As per her nomination letter, Advocate Van Zyl could have applied successfully for senior counsel status, and she has been encouraged to do so, however the need to balance personal and professional responsibilities have meant that she has opted to remain a junior counsel. She has been highly praised by members of the Bar both for her abilities and competence as an advocate and an acting judge.
She has acted as a judge of the Western Cape Division of the High Court for 6 terms, the first of which was in 2022. She has also sat as a Tax Court on 1 occasion. During that time she has written approximately 90 judgments of which approximately 9 have been reported. 3 of her judgments have been appealed, however 2 of these appeals were dismissed, and 1 was upheld by the Full Bench of the Western Cape Division of the High Court.
In 2019 Advocate Van Zyl revised and updated the titles “Heritage” and “Religion” in anticipation of the third edition of Joubert et al’s The Law of South Africa (LAWSA), which titles have since been published in Volumes 21 and 34 of LAWSA. She has also updated the title “Interdicts” in anticipation of the third edition of LAWSA, which has yet to be published.
She has stated in her application that her favourite area of law is contract, however as an advocate she has expanded her practice to include constitutional law and administrative law, in particular matters involving municipal planning, building law, environmental law, and procurement law. She has also been involved in various arbitrations, as both a party ad arbitrator.
In the case of Hogue v Minister of Home Affairs, the applicants were Bangladeshi nationals seeking permanent residence in South Africa. The first applicant had obtained a general work permit in 2009. Upon expiry of that permit in 2019, he applied for a critical skills visa. That, together with his family’s applications for visitor’s visas, was granted in 2021. Prior thereto, in 2015, the first applicant had applied for a permanent residence permit in terms of section 26(a) of the Immigration Act 13 of 2002. The second applicant, applied for a permit in terms of section 26(b) on the basis that she had been married to the first applicant for more than five years, and two of the minor children, the third and fourth applicants, applied for permits in terms of section 26(c) on the basis that they were of minority age. The refusal of the applications gave rise to the litigation between the parties. The applicants sought condonation of the delay in instituting their application and the failure to exhaust internal remedies; a declaration that the first applicant was not a prohibited person in terms of section 29(1) of the Immigration Act; and the review and setting aside of the decisions taken by the respondents in rejecting the applications for permanent residence permits.
It was stated by Van Zyl that the application turned on whether the Minister acted lawfully when he rejected the first applicant’s application for a permanent residence permit. The applicants argued that the reasons given for the refusal fell to be reviewed and set aside, and that the respondents had infringed the applicants’ rights to lawful and reasonable administrative action. In considering the reasons given for refusing permanent residence permits, the Van Zyl found that the respondents had failed to place sufficient evidence before the court to justify the impugned decisions, and the review relief sought by the applicants therefore had to succeed. There was nothing in the documents filed of record to substantiate the decisions taken by the respondents.
Van Zyl went on to state that section 8(1)(c)(ii)(aa) of the Promotion of Administrative Justice Act 3 of 2000 allowed a court in proceedings for judicial review under the Act to grant any order that is just and equitable, including orders setting aside the administrative action and substituting or varying it, instead of remitting the matter for reconsideration by the original decision-maker. Exceptional circumstances had to exist to justify substitution or variation. Section 172(1)(b) of the Constitution further granted a court the power to make any order that is just and equitable when deciding a constitutional matter. Van Zyl thus decided that this was a matter in which it should substitute the decision instead of remitting it to the respondents.
Advocate Van Zyl further noted that section 7(1) of the Promotion of Administrative Justice Act required applications for judicial review to be brought within 180 days of the impugned decision, or from the date on which any internal remedy was finalised. She thus had a discretion to condone any delay if in the interests of justice. In this case, she was satisfied that it would be in the interests of justice to extend the 180-day period prescribed so as to allow for the consideration of the review relief sought by the applicants, and to condone the failure to exhaust all internal remedies available.
Van Zyl declared that the first applicant was not a prohibited person in terms of section 29(1) of the Immigration Act, and the second respondent was directed to issue permanent residence permits to the applicants.
October 2024 Interview:
