Capacity: Advocate
Gender: Male
Ethnicity: African
Date of Birth: February 1959
Qualifications: BJuris (1987)(University of Transkei) LLB (1993)(University of Pretoria)
Key Judgments
- Consupaq a Division of Astrapak Manufacturing Holdings (Pty) Ltd v Sohawan and Another (13029/2022) [2023] ZAKZPHC 35 (24 March 2023)
- Deschaney Investments (Pty) Ltd v Ardain Commercial CC (1307/2021) [2023] ZAKZDHC 23 (31 May 2023)
- Newlands Sporting FC and Others v Durban Central Local Football Association (D1198/2022) [2023] ZAKZDHC 13 (24 March 2023)
- Zulu and Others v Zulu and Others (D429/2023) [2023] ZAKZDHC 20 (24 March 2023)
Candidate Bio (Updated September 2024)
The former half of Advocate Msiwa’s career was spent at the Department of Justice, where he occupied several positions up the rank. Starting in 1983, Msiwa was an Admin Clerk for a year. For the next three years Msiwa served as a Prosecutor, followed by almost a decade as a Control Prosecutor. His experiences from this time at the Department of Justice may offer some unique skills and perspectives for the JSC to consider come the interviews.
Departing from his post, Msiwa joined the Society of Advocates of Transkei in 1997. He has been practicing as an advocate since – a total of 27 years – and was conferred Silk status in 2021. During his time, Msiwa has been a member and chairperson of various committees at the Bar.
Msiwa served several stints as an acting judge of the Eastern Cape Division of the High Court in 2014 and 2018 for 2 terms. He resumed his acting stints in 2023 for the KwaZulu-Natal Division for a term, returning to the Eastern Cape Division for one term.
In Newlands Sporting FC v Durban Central Local Football Association, the respondents convened an elective conference at which the first respondent’s Executive Committee. The applicants contended that their exclusion from the elective conference was irrational, arbitrary and procedurally unfair and, as a result, the elective conference was procedurally irregular. The applicants raised the concern that the elective conference was not in compliance with the provisions of the electoral code of the South African Football Association (SAFA).
The issue stemmed from the requirement that attendance at the elective conference was reserved for the delegates of clubs who were in ‘good standing’ as members of the first respondent. This good standing allowed them to vote in the conference. The respondent contended that the applicants were not in good standing, and the applicants offered no direct response to this contention. Advocate Msiwa thus found the applicant not to be in good standing and ineligible to vote for the Executive Committee.
Advocate Msiwa then took issue with how SAFA had handled its obligations in its administration and the settlement of disputes, pointing out that South Africa’s sporting codes are lagging behind those at the international level. Msiwa stated that:
In South Africa, currently the prevailing abject poverty due to the social and economic inequalities as a result of apartheid have riddled the disadvantaged communities. Football or any sport for that matter does wonderfully pre-occupy the people by saving them from being victims of criminal activities, but under good governance of codes, particularly in soccer, the disadvantaged and unemployed sports people shall be able to provide welfare to their families out of participation in sport. This must be promoted by SAFA through its structures as a National soccer body.
Advocate Msiwa dismissed the application.
Msiwa has experience at the Small Claims Court. Here, he served as Chairperson of the Advisory Board to the Justice Minister and presided as a Commissioner in the Mthatha Court.
Advocate Msiwa holds a B.Jruris from the University of Transkei and an LLB from the University of Pretoria. He has also completed an Advanced Programme in Alternative Dispute Resolution at the University of Pretoria, facilitated through the Arbitration Foundation of South Africa.
October 2024 Interview:
October 2024 Interview Synopsis:
Coming before the JSC for the first time, Chief Justice Maya placed on record at the start of the interview that they have known each other for a long time but still confirming that it would not impact on her objectivity of course. Several peculiarities arose in Advocate Msiwa SC’s interview, the first of which being that he was unable to answer CJ Maya when she asked how many judgments he had written.
The next peculiarity arose when it was made clear that he was unaware that Judges should have no political affiliations. As an ANC member himself CJ Maya asked “if you were fortunate enough to be appointed as a judge what would happen to that membership?”. His answer explained that his membership would not impact his independence and impartiality but did not mention that he would leave the ANC. This is interesting as earlier in his interview he pointed out that he deals with a lot of constitutional law matters.
A further peculiarity arose when Commissioner Notyesi asked if he has a judgment where he was a lead counsel but strangely as Senior Counsel he could not think of an example.
The final peculiarity of the interview arose through the discussion introduced by Commissioner Pillay SC. His judgments are difficult to follow, badly structured and riddled with typographical errors stated Pillay. She also referred to a specific case to emphasis this point where he traversed material in a judgment that was not relevant to the issue before him. The peculiarity was when he confirmed to Commissioner Ngcukaitobi that nobody had taught him to write judgments and he had not signed up to any training programs or courses.
Commissioner Malema picked up on all of the peculiarities mentioned above and asked him these questions once again. However this time he was able to answer that he had written 15 judgments during his acting stints. Unsurprisingly as a political leader, Malema was especially shocked by the fact that he was unaware of any rule that stopped him from being a member of the ANC as a judge. Advocate Msiwa explained that he if was told he cannot be a member, he would relinquish his membership. Malema went on to point out that as an aspirant judge he never took any opportunity to attend training for judgment writing. “You come across as being complacent” commented Malema, stating that he will argue that Msiwa is not a suitable person to be a judge. In Malema’s view he had failed to show that he was aspirant in his preparation for the interview in the fact that he did not attend courses, have updated information or stop being a member of the ANC. Msiwa’s response did little to rectify change the minds of the commissioners as he made weak explanations to explain the reasons that Malema raised of why he would be unsuitable.
Commissioner Hassan was also unsatisfied with the answers she received from Msiwa when she posed her question. After alluding to specific challenges currently faced in the Eastern Cape, she asked how he would deal with a potential culture where sexual harassment may or may not be normalised and what he would do to combat it? Sexual harassment is “an atrocious and unbearable offense” commented Msiwa. He went on to say that it is something that needs to be spoken about amongst staff in a manner that is discouraged.
Advocate Msiwa SC was ultimately unsuccessful in his first interview before the JSC.
