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Advocate Cassim Ismail Moosa

Profile
Current position: Advocate
Gender: Male
Ethnicity: Indian

Candidate bio:
The year it took Moosa to hand down judgment in Mhlanga v Minister of Police is sure to draw the ire of Chief Justice Mogoeng Mogoeng, who is a stickler for members of the Bench delivering their judgments on time.

The plaintiff, who appeared to run an unlicensed liquor outlet, sued the police ministry for damages after being arrested by police who did not have a warrant and claimed damages for alleged unlawful arrest and detention.

Based on Section 40(1) of the Criminal Procedure Act and various applicable case-law, Moosa identified various factors that must be present for an officer to effect an arrest without a warrant:

“The jurisdictional prerequisites for S 40(1) must be present; the arrestor must be aware that he or she has a discretion to arrest; the arrestor must exercise that discretion with reference to the facts [and that] there is no jurisdictional requirement that the arresting officer should consider using a less drastic measure than arrest to bring the suspect before court,” he noted.

Based on this approach, Moosa found that selling liquor without a licence constituted an offence under section 154 (1)(a) of the Liquor Act, and therefore concluded that the arrest was lawful.

In the 2018 matter S v Lebogang, a taxi-driver pleaded guilty to 50 counts, including rape (13 counts), robbery with aggravating circumstances, kidnapping and sexual assault. The accused was a taxi driver who kidnapped, raped and sexually assaulted passengers.

After noting the seriousness of the crimes committed, addressed the issue of mercy as “a component of justice.” Citing the judgments of S v Rabie and S v SMM, Moosa concluded that sentencing is generally a matter of discretion left in the hands of the court.

He held that the discretion should not be “exercised arbitrarily”, but “reasonably and judicially within the parameters of legislative prescription. Given the current levels of violence and serious crimes in this country, it seems proper that, in sentencing especially such crimes, the emphasis should be retribution and deterrence. Retribution may even be decisive.”

Moosa pointed out that the level of crime in society had reached alarming proportions in the society, and found that the accused’s abuse of the “pivotal role” of taxis in society constituted an aggravating factor.

He did not find any compelling circumstances to deviate from the prescribed minimum sentence of life imprisonment and also ordered the accused to participate in “sex offender programmes offered by the Department of Correctional Services.”

According to his application form fifty-four year-old Moosa holds both a BA and an LLB from the University of Durban Westville – although curiously, the application lists them as both being obtained in the same year. He has a diploma in alternative dispute resolution from the University of Pretoria and a post-graduate diploma in labour law from the University of Johannesburg to go with various arbitration and dispute resolution qualifications.

Moosa has worked as a state advocate and state prosecutor and also spent five years as the legal consultant for the City of Johannesburg.

April 2021 Interview:

April 2021 Interview Synopsis: 

At the time of his interview Advocate Cassim Moosa had spent 168 weeks as an acting judge. These, according to Gauteng Judge President Dunstan Mlambo, who prides himself on his spreadsheets, included 80 in the criminal courts and another 86 weeks in the civil courts.

Moosa was what is becoming more regularly known as a “permanent acting judge” and he told the commission that this had led to an “almost non-existent practice” because he had given himself up in “serving the judiciary”.

He said this had led to the precarious situation where he sometimes had insomniac nights because he was concerned about “security of revenue” but that he had, over the past six years “weathered the storm” and now hoped and “pray that this honourable commission will find it in themselves to appoint me”.

When Professor Engela Schlemmer pointed out that such a prayer “puts this commission under undue strain” and asked whether this should be a consideration for judicial appointment, Moosa backtracked and said he was “misunderstood” and that he didn’t mean to pressurise the JSC because there was “no expectation” that an acting position on the Bench would inevitably lead to permanent appointment.

On his judicial philosophy, Moosa said he located himself somewhere between a “liberal judicial philosophy” and a “moderate” one which was “underpinned by the maxim of Ubuntu”.

In 2019 Moosa unsuccessfully interviewed for a position on this Bench. Advocate Dali Mpofu SC asked Moosa what he had learnt about himself and the job which made him feel that he was now ready for appointment.

He said he had “seen the absolute wisdom” of Gauteng Judge President Dunstan Mlambo who “sits on the periphery” observing acting judges’ strengths and weaknesses, which areas of the law they need to brush up on, and “grooming them accordingly ”. On a personal level, Moosa said he had brushed up on his experience in the civil courts and had done some “heavy lifting with “numerous” special motions and urgent court applications.

Moosa was asked about a 2017 matter which had been reserved for a year, Faisal Abid v the South African Revenue Service (Sars), before judgment was handed down. It dealt with an attempt to get almost half-a-million US dollars out the country. He said it was a technical matter and the delay had been caused by “red tape” preventing him access to certain areas of OR Tambo International Airport to conduct an inspection in loco.

He conceded that the delay was unforgivable, but told the commission that he had learnt his lesson from that experience and had delayed handing down a judgment outside the three-month maximum since then. Moosa also added that the judgment was now “used regularly by Sars to defend their position in money-laundering matters”.

Moosa was not nominated for appointment.

October 2019 Interview:

October 2019 Interview Synopsis:

After a long day of interviews, the JSC interviewed Advocate Moosa and this interview did not last longer than ten minutes. Only the Chief Justice and JP Mlambo interacted with Adv Moosa. JP Mlambo did not pose any questions to Adv Moosa, but reiterated information that Adv Moosa merely confirmed.

Advocate Moosa has been practising as an advocate since 1997. However, he only practiced actively until 2015 when he was invited to act as a judge in the Gauteng Division. Advocate Moosa has acted as a judge for a whopping 112 weeks, which is approximately a total of 28 months. Moosa admitted that as a result of his acting stints his practice has had to take the back seat. He however does not regret this as he noted to the commission that he prefers acting as a judge as opposed to practising as an advocate.

Getting straight to the point, JP Mlambo noted that Moosa has indeed acted for 112 weeks and 72 of those weeks Moosa acted in the criminal court which is where his strength lies. Although his strength is in the criminal court it was brought to light that Moosa has done other work which is not criminal law related. While acting as a judge Moosa noted that he enjoyed the fact that experienced counsel appeared before him. This meant that he had to be on his toes all the time.

JP Mlambo was stunned by the fact that Moosa had handed down 177 judgments during his acting stints and that most of these judgments were handed down within one or two days after the matter had been heard. Moosa shed some light into the reasoning for his excellence. Moosa noted that he has handed down ex temporae judgment, even in opposed motion court matters. This is due to the fact that judges get the court files in advance. Therefore they are able to peruse the file and take a prima facie view on the matter. During the hearing the judge will not waste time as he already knows what the matter is about, especially if there is a good set of heads of argument that the judge can correlate with the argument being raised. In such instances, it is possible for a judge to hand down an ex temporae judgment.

On a lighter note, the CJ commented that there are some judges who go to court with a judgment already typed whereas the matter has not been heard yet. Once argument is done the judge then reads out the judgment. In response Moosa clarified that he has never ever have written a judgment before hearing the matter. Moosa reasoned that a judgment is normally handed down for the losing party therefore, a judge must make sure that the judgment would be able to stand scrutiny and would not be unnecessarily appealed.

Moosa’s interview concluded at 09min 17 second … just less than 10 minutes. This was one of the shortest interviews by the JSC.