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Advocate Hugo De Waal SC

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  • Advocate Hugo De Waal SC

Capacity: Advocate
Gender: Male
Ethnicity: White
Date of Birth: February 1965
Qualifications: B Comm (1985) LLB (1987) (SU), LLM (1989) (Notre Dame, USA)

Key Judgments:

Candidate Bio (Updated September 2024):

Advocate Hugo De Waal SC has been a senior counsel since 2016, during which time he has acted as a judge of the Western Cape Division of the High Court on 2 occasions, from February to April 2019, and in November 2023. During that relatively short time he delivered some significant judgments.

He obtained his LLB from Stellenbosch University in 1987, after obtaining his B Comm in 1985. He thereafter studied human rights and constitutional law at the University of Notre Dame in the United States of America, qualifying with his LLM in 1989. He went on to become a lecturer at the University of Witwatersrand, where he lectured constitutional law from 1991 to 1994, before leaving to work as a Constitutional Court clerk for Justice LWH Ackermann in 1995. In 1996 De Waal joined the University of Stellenbosch as senior lecturer in the Public Law Department until 2002.

Whilst an academic, De Waal contributed to some seminal publications, most notably Currie & De Waal, The Bill of Rights Handbook, and Currie & De Waal, The New Constitutional and Administrative Law, volume 1 ‘Constitutional Law’ (2001). He published many more articles and pieces of legal scholarship in the sphere of administrative and constitutional law, which have been cited favourably on numerous occasions.

De Waal left the University of Stellenbosch in 2002 to go to the Cape Bar, where he was admitted as an advocate in 2002. He was elevated to senior counsel in 2018, and has practiced as a silk for 6 years. During his time as an advocate, De Waal acted for and against political parties, universities, public and private schools, and sporting bodies. He has appeared in numerous matters before the SCA and Constitutional Court. Further, he has been involved in drafting a number of national and provincial policies relating to matters such as the control of vehicles in the coastal zone, and preferential procurement.

Advocate De Waal’s main focus is public procurement, having been involved in about 150 disputes of this nature. His second area of focus is planning law, and he has been involved in about 100 matters involving planning law. In total, he has over 80 reported judgments, about half of which emanate from the SCA and Constitutional Court.

Advocate De Waal has served as Chair and Deputy Chair of the Cape Bar between 2022 and 2024, and whilst doing so he has driven the ongoing transformation initiatives of the Cape Bar which focus on enabling young African advocates to gain access to quality work and to develop sustainable practices. His commitment to the broader goals of a transformed legal landscape is reflected in his service on the South African Law Reform Commission, to which he was appointed by the President in 2018.

He has appeared before the Constitutional Court in various matters, most notably the cases of Economic Freedom Fighters v Speaker, National Assembly 2016 (3) SA 580 (CC), and Women’s Legal Centre Trust v President of the Republic of South Africa; Minister of Justice and Constitutional Development v Faro; Minister of Justice and Constitutional Development v Esau (612/19) [2020] ZASCA 177; [2021] 1 All SA 802 (SCA); 2021 (2) SA 381 (SCA) (18 December 2020).

Whilst serving as an acting judge, Advocate De Waal has delivered judgments of a very high standard. In Goldstar Finance (Pty) Ltd v Capitec Bank (Pty) Ltd, the applicants were credit providers, providing micro-lending services in the form of unsecured loans to customers. They sought interim interdictory relief preventing the first respondent (“Capitec”) from terminating certain services provided to them until the second respondent (“Amplifin”) found a replacement bank for the provision of the services, alternatively pending the outcome of an action to be instituted for final interdictory relief. Amplifin used Capitec services to extract payments which were due from the bank accounts of the applicants’ customers, so that such amounts could be then transferred to the applicants’ bank accounts.

In dismissing the applicant’s application for interim relief with costs, De Waal, held that Capitec was not the only entity which could provide the required services to the applicants and Amplifin. The practicality of switching to another option was relevant to the issue of whether the applicants would suffer irreparable harm if interim relief was refused. The requirements for the interim relief sought were: a prima facie right; a well-grounded apprehension of irreparable harm if the interim relief was not granted and the ultimate relief was eventually granted; a balance of convenience in favour of granting of the interim interdict; and the absence of any other adequate ordinary remedy. He noted that those requirements should not be considered separately or in isolation but in conjunction with one another to determine whether the court should exercise its discretion in favour of the grant of the interim relief sought.

He went on to state that the first point to be addressed on the merits was the applicants’ contention that Capitec could not terminate the facilities for as long as the agreement between itself and Amplifin remained in place and that it was common cause that the agreement was in place until 15 October 2024, whereafter twelve months’ written notice of termination had to be given by either party. The alternative argument was that the facilities could not be cancelled without good reason. Advocate De Waal noted that it was also submitted that Capitec’s termination of services would negatively affect the applicants’ constitutional right to trade. He rejected those contentions. There was no support for the linking of the applicants’ facilities to the agreement between Capitec and Amplifin, which underpinned the applicants’ submissions. Furthermore, the jurisprudence pertaining to the termination of a contract of indefinite duration applied to the applicants’ facility agreements. In terms thereof, parties were entitled to terminate an indefinite contractual relationship on reasonable notice, not reasonable grounds. No reasons need to be given because if reasonable notice is given the question of whether there is good cause for the closure of bank accounts of indefinite duration does not arise. Thus, as the law stood, good cause for termination of these contracts was not required.

Consequently, he held that the applicants had accordingly failed to establish a prima facie right to the relief sought, and the application fell to be dismissed on that basis alone. He nonetheless also considered whether the applicant had a reasonable apprehension of irreparable harm and whether the balance of convenience favoured the granting of the interim relief sought, finding against the applicants in both instances.

Advocate De Waal’s expertise in constitutional and administrative law is without question, and his illustrious career as an advocate and short stints as an acting judge have indicated that he has the capability and acumen to deal with and adjudicate complex matters involving important constitutional considerations.