Capacity: Advocate
Gender: Male
Ethnicity: White
Date of Birth: September 1961
Qualifications: BLC (1983) BA (Hons)(Latin) (1985) LLB (1985)(University of Pretoria), LLM (1990)(University of Cambridge, UK)
Key Judgments:
- Preference Capital (Pty) Ltd v Nomageba Trading CC and Others (2024/031809) [2024] ZAGPPHC 432 (8 May 2024)
- Wessels v Capitec Bank Ltd (2024/030523) [2024] ZAGPPHC 398 (22 April 2024)
- Independent Development Trust (IDT) v Bakhi Design Studio CC and Others [2023] ZAGPPHC 363; 033351/2023 (12 May 2023)
Candidate Bio (Updated September 2024)
Advocate Labuschagne began his legal career as a candidate attorney at Couzyn Hertzog & Horak Attorneys, completing his articles in 1988.
In the same year, he joined the Pretoria Bar and has been practicing since – an impressive 36 years. In 2006, Labuschagne was given Silk status (senior council). During this time, Labuschagne’s litigation experience has veered predominantly towards constitutional and administrative law.
As an advocate, Labuschagne has been involved in various high-profile matters. When former President Jacob Zuma attempted to prevent the release of the former Public Protector’s report on state capture, Advocate Labuschagne represented the Democratic Alliance to secure the report’s release. Additionally, Labuschagne represented the former Public Protector in establishing the principle that her remedial action is constitutionally binding on state organs unless challenged. Advocate Labuschagne has also acted for and against various public actors including Ministers, the former Vice President and state-owned enterprises. This may demonstrate his public law acumen.
From 2006 onwards, Advocate Labuschagne has served as an acting judge of the Gauteng High Court serving a total of 19 weeks. In Independent Development Trust (IDT) v Bakhi Design Studio CC and Others the IDT, a public entity, awarded various contracts to Bakhi Design Studio (first respondent) for the undertaking of architectural services and project management services on various projects for national departments of government. A dispute arose between the parties which led to a referral for private arbitration. In its application to the High Court, the IDT (applicant) sought the suspension of the arbitration proceedings and the self-review of five of its decisions in appointing the first respondent as project manager for the aforementioned projects.
As the applicant fell within the ambit of Section 259 of the Constitution by virtue of it being an organ of state, Labuschagne stated that self-review ought to be conducted in terms of the principles of legality and not the Promotion of Administrative Justice Act (PAJA). To that end, the applicant contended that the judicial review of its decisions to appoint the first respondent was a public law matter not fit to be decided in private arbitration. The first respondent argued that the arbitrator’s jurisdiction is wide enough to cater for self-review based on legality.
Labuschagne considered provisions like Section 7(4) of PAJA and Section 109(2) of the Municipal Systems Act which “manifest an underlying principle emanating from the Constitution” that the court is the sole arbiter of legality. “The privatisation of litigation”, he reasoned, would “not pass constitutional scrutiny” in matters of legality. Labuschagne ultimately ordered the arbitration proceedings stayed pending finalisation of the review application.
In Wessels v Capitec Bank Ltd Labuschagne dealt with an issue all too common in South Africa, albeit through a relatively new technology. In this matter, fraudsters were able to gain control over the bank account of a 67 year old pensioner (the applicant) through a scam. In a total of 23 deposits, more than R950 000 was paid to the bank accounts of the third respondent at Capitec Bank (first respondent) and ABSA Bank (second respondent). Labuschagne noted that the third respondent was a part-time cryptocurrency trader on the Binance platform. The banks placed a temporary precautionary hold on the third respondent’s accounts, however, they required a court order to extend this hold.
The applicant sought an order restraining the banks from releasing the hold pending finalisation of action proceedings for the repayment of the total amount paid from the applicant’s account. These action proceedings would be instituted within 10 days of the above order.
The applicant was seeking an anti-dissipatory interdict, utilised to prevent a defendant from dissipating assets to defeat a plaintiff’s claim. Labuschagne found it necessary to ascertain whether the applicant had established mala fides. The third respondent accepted that the amounts were paid to him from the applicant’s account but insisted that he was a bona fide third party; the actual fraudsters had used the applicant’s money to purchase vast amounts of cryptocurrency from the third respondent. He further claimed that he did not intend to deal with his assets with the intention of defeating the applicant’s claim and that, according to the principle of commixtio, the money was no longer the applicant’s.
The third respondent contended that the transactions on the Binance platform were legitimate and verified by the platform, including the identity of his clients. Advocate Labuschagne noted that this due diligence, such as identifying clients, is required of the third respondent by the Financial Intelligence Centre Act (FICA) and cannot be delegated to Binance. Added to this, the third respondent should have foreseen the risk of money laundering on a cryptocurrency platform like Binance. Labuschagne noted that the third respondent’s indifference to this, and the consequences on the applicant, was lamentable. However, this was not enough to satisfy the presence of mala fides. The application was dismissed.
Far from being a one-trick pony, Labuschagne is the author of several children’s books. He has also written a historical fiction novel titled Skaakmat in Elf about two Mossad agents investigating a terrorist attack on the Israel Olympic team at the 1972 Munich Games.
Advocate Labuschagne holds a BLC, BA (Hons) and LLB, all cum laude from the University of Pretoria. During his latter years at the university, Labuschagne was a junior lecturer in Latin. He also holds an LLM from Cambridge University.
October 2024 Interview:
October 2024 Interview Synopsis:
Adv Labuschagne SC’s interview started with the usual questions from CJ Maya which scanned through his CV, from these questions the Commission was informed of Labuschagne’s 36 years of experience which included several appearances at the SCA and the Constitutional Court. Despite his vast legal experience, he explained that he only had 19 weeks of acting experience in the High Court due to the high cost of not working at his chambers.
Premier Lesufi, responding to Labuschagne’s comment that ‘he is a champion of transformation’, asked Labuschagne if he has ever promoted any form of transformation outside of the work space? Labuschagne provided that he was a pro bono advisor to indigent people in the city centre and was involved in training the asset forfeiture units. Adv Pillay SC followed up on his transformation agenda questioning his practice of using black juniors on his matters, he confirmed that he does rely on black junior counsel frequently and often allows them to run matters on their own.
The Premier’s next question pivoted to Labuschagne’s selection of cases he included in his application. He questioned Labuschagne on why he was ‘proud to declare’ being counsel for the DA but failed to declare who his client was in the Grace Mugabe case. Labuschagne explained that he was not instructed by the DA in the second case and had no sinister reason for not noting that it was Afriforum who briefed him on that matter. Ngcukaitobi SC followed up to clarify that as advocates you are not the spokesperson for your client, you are their legal representative.
Commissioner Hassan tested Labuschagne’s legal knowledges in a question which fell within the ambit of separation of powers in relation to the energy sector. She asked whether there are specific scenarios which call for a need for a court to overstep, and where they should step back because the order is not possible for the executive or parliament to implement in relation to loadshedding. Labuschagne explained that the solution to loadshedding does not lie in the courts, but who should have priority of access is possibly something that they are able to decide on.
Marumoaggae also asked a question to test his legal knowledge, but this time the question was placed in Administrative Law regarding applicability of PAJA. He asked for Labuschagne’s view on what the position of the law is on judicial review or if we have some challenges on the clarity of the jurisprudence? Labuschagne started his response by mentioning the Gijima case which sets out that organs of state do not utilise PAJA for self-reviews, this review is done in terms of the principle of legality. In the field of Administrative Law the development of the jurisprudence of PAJA and s1(c) has created two parallel sets of jurisprudence and the Gijima judgment clarifies which one applies where responded Labuschagne to Prof Marumoaggae’s satisfaction.
“I have to make this comment that it is rare for our top lawyers, which you are that’s a fact, to make themselves available for the bench. We know what the challenges are. We always appreciate it when someone like you does make themselves available and we hope this will encourage, we hope they are listening out there, it will encourage our top lawyers especially the black ones to make themselves available for the bench. We know the pay is poor but we are drowning. We need our good people.” Pleaded CJ Maya to end Adv Labuschagne SC’s interview.
Adv Labuschagne SC was ultimately successful in his first interview before the JSC.
