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Advocate Penelope Magona-Dano

Capacity: Advocate
First admitted as prosecutor: 1999
Gender: Female
Ethnicity: Black
Date of Birth: 10 May 1975
Key judgments:

Candidate bio:

The celebrity judgment in Advocate Penelope Magona-Dano’s otherwise thin judicial “Best Of” collection is the 2020 matter of Bywana v Master of the High Court, Cape Town & Others.

The judgment was welcomed by the Legal Resources Centre as “an important development of the South African jurisprudence on the rights of opposite-sex permanent life partnerships. Often women in such relationships are vulnerable and suffer discrimination when the relationship is terminated by death. The decision is therefore a welcome development in advancing the rights of women to equality and dignity specifically in relationships.” [Source]

In that case, the applicant sought an order declaring provisions of the Intestate Succession Act (ISA) and the Maintenance of Surviving Spouses Act (MSSA) unconstitutional, as they did not recognise or provide for her claims against the estate of the deceased. The deceased had passed away leaving a will, but the will nominated his mother, who had died intestate three years earlier, as heir to his estate.

Magona-Dano set out the history of the relationship between the applicant and the deceased: they had been permanent life partners, intended to have a child and to get married once lobolo had been negotiated.

The acting judge noted the evidence of people close to the couple which supported the commitment to get married, and that they had planned to travel to Zimbabwe so the deceased could meet the applicant’s family.

The applicant argued that the ISA’s exclusion of life partners in permanent opposite-sex life partnerships from inheriting was unconstitutional and sought a reading in of the words “or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support and had been committed to marrying each other” wherever the word “spouse” appeared in the section.

Magona-Dano considered the precedents which developed the law and the “inclusivity approach for the relationships … which in my view may be considered towards what ought to be the outcome of the relief sought by the Applicant.”

She held that a settlement agreement entered into between the applicant and certain of the respondents did not render the matter moot:

“[T]he legal points whether the Applicant ought to be recognised as the deceased’ s opposite sex permanent life partner, the constitutional challenge involving whether there should be a reading in and a different interpretation that is required to the ISA or MSSA remains alive and not merely an academic question.”

She found that the applicant and the deceased were permanent life partners who had undertaken reciprocal duties of support to one another and that there was differential treatment between same-sex couples, who stood to benefit from the ISA even if they were not married, and there was “no legitimate purpose why the heterosexual permanent life partnerships are not having a similar benefit”.

Noting the traditional prejudice women suffered “after years of dedication and support to the livelihood of a permanent life partnership” Magona-Dano found that there was an infringement of the applicant’s rights to equality and dignity, “as they are being treated differently to their same-sex life partnership, the latter do inherit even if they are not married. This discrimination is on specified grounds of marital status, sexual orientation, sex, and gender.”

She found this differentiation amounted to discrimination which was unfair and unjustified.

On the challenge to the constitutionality of the ISA, Magona-Dano therefore concluded that “the failure to include the heterosexual partnerships within Section 1(1) of the ISA is unconstitutional to Ms Bwanya’s rights and the rights of all those similar in her circumstances as described by the WLCT [Womens’ Legal Cetre Trust], particularly their rights to equality and dignity in terms of sections 9 and 10 of the Constitution. The impact of the impugned provision unfairly discriminates and cannot be justified in our constitutional order.”

Magona-Dano found that the doctrine of precedent precluded the challenge to the MSSA. The application, therefore, succeeded in respect of the challenge to the constitutionality of the Intestate Succession Act.

A celebrated judgment, but one — according to the version on SAFLII — is riddled with spelling errors, typos, fragmentary paragraphs and is quite poorly written in sections. Something that seeps into Magona-Dano’s application form which suggests a sloppiness that should be a red-flag for the Judicial Service Commission (JSC).

In her application form, she also admits to being a payment plan for debts owed to “some banks” and to the South African Revenue Service in respect of her tax returns.

Her appointment may have the potential to cause future embarrassment for a division that is currently struggling for credibility at the moment.

April 2021 Interview:

April 2021 Interview Synopses

Advocate Penelope Magona-Dano’s interview exposed various structural issues troubling the legal fraternity in general — and the judiciary, especially — when it comes to transformation, and the search for suitably qualified black female judges.

Despite being apparently bright and enthusiastic to learn, it seemed most of Magona-Dano’s exposure to a wide variety of law was happening on the job, while she was acting at the Western Cape High Court.

Advocate Jennifer Cane SC pointed out that colleagues at the Cape Bar had, in their submissions to the Judicial Service Commission, been critical of the quality of Magona-Dano’s judgements which they attributed to her being a “relative junior” at the Bar. The submissions suggested that she required more experience.

The candidate said it was “good to learn from colleagues” and that she took the criticism as “an opportunity to grow” which is what her acting stints allowed her to do through the variety of cases she adjudicated.

Cane asked her whether she would also gain experience if she went back to working at the Cape Bar. Magona-Dano said it was unlikely since for black female advocates briefs came “in dribs and drabs” and that she had received only one brief from the State Attorney’s office — one of the main litigants in the country.

“It wouldn’t be the same experience I am getting at the judiciary,” she said, adding that she “never got” such a “variety of issues” while practising as an advocate.

On her application form Magona-Dano had admitted that was on a payment plan for debts owed to “some banks” and to the South African Revenue Service in respect of her tax returns.

Supreme Court of Appeal President Mandisa Maya noted this and observed that being considered “financially porous” risked the “potential to undermine judicial independence”.

Magona-Dano said: “I revere God. I am a principled woman with integrity… I represent black females and I love the country. I am dedicated to upholding the flag of the country. I have lived all my life with integrity… It [being corrupted] will never happen to me.”

On her judicial philosophy, Magona-Dano said it was to “dispense justice without fear, favour or prescription”.

When asked by the Democratic Alliance’s Glynnis Breytenbach whether she thought it problematic for the reputation and functioning of the judiciary if a judge found guilty of gross misconduct continued in his job, Magona-Dano said: “I have no views, commissioner.”

Magona-Dano was not appointed.