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Advocate Shaida Aboo Baker Mahomed

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Advocate Mahomed

Capacity: Advocate 
Gender: Female
Ethnicity: Indian
Date of Birth: May 1963
Qualifications: BA (1987) LLB (1990)(UKZN), LLM (2002)(University of Pretoria)

Key Judgments:

Candidate Bio (Updated September 2024)

Advocate Mahomed obtained her BA and LLB from UKZN and her LLM in corporate law from the University of Pretoria. After graduating from her LLB, Mahomed was a Legal Resource Centre graduate fellow in 1991.

Following the path of her legal career, Mahomed served articles at ZK Seedat & Co. A few years later Mahomed would become co-founder and partner at Munga Ismail Mahomed Attorneys.

From here Mahomed would develop a commitment to the rule of law and accountability. She became a senior investigator at the Public Protector’s office and then served as senior State advocate at the Directorate of Special Operations for the Scorpions. Mahomed started the impact litigation unit at Legal Aid where she served as a senior attorney. Here, her work consisted mostly of personal injury matters.

Mahomed has worked as an arbitrator and mediator as a member of the Arbitration Foundation of South Africa (AFSA). In 2007 Mahomed became an advocate of the High Court and has been practising since.

Mahomed has acted as a judge of the Gauteng High Court for a total of 55 weeks. In Daniel Wellington South Africa v Azrapart Mahomed heard an application for rescission of a default judgment against the applicant. The applicant had failed to file a notice of motion to defend the action. While the respondent claimed that it had properly served summons at the domicilium address indicated by the applicant and thus the applicant was wilful in its failure to file a notice to defend, the applicant contended that the summons was served at its previous domicilium address and was unaware of this.

Mahomed first noted that upon final judgment, a court has no power to set it aside or correct it. This is to ensure that “litigation is brought to finality, it is in the public interest to do so.” However, Mahomed considers that there are circumstances where rescission is permitted in terms of the Rules of Court, Rule 42(1)(a), 31(2) (b) and common law or when setting aside is allowed in terms of section 23A of the Superior Courts Act.

Following this, Mahomed relied on the jurisprudence of previous judgements which provides that before an applicant in a rescission of judgment application can be said to be in wilful default, they must have knowledge of the action brought against them and of steps that must be taken to avoid default judgment. Mahomed noted that in this case, the applicant could not have had such knowledge, as the summons was served on its old address. If the applicant had known of the action, it would have defended it.

Further, the failure to take steps to avoid default judgment must have been a deliberate failure. Mahomed reasoned that this was not the case, as the applicant did not know that the summons had been served at the wrong address. In Mahomed’s view, “the applicant provided a reasonable and acceptable explanation for its default.” The application for rescission was granted.

Mahomed has also heard several matters relating to unlawful arrest and detention. In Vukani v Minister of Police the plaintiff was arrested without a warrant and detained for four days without being taken to court. The plaintiff was arrested by security guards of a security company on the basis that he had committed a robbery. He was placed in a cell in poor condition and no privacy.

Mahomed found that the plaintiff was not arrested by a peace officer, as required by section 40(1)(b) of the Criminal Procedure Act. There was also no evidence that the plaintiff had committed the alleged crime and no steps were taken by law enforcement to verify the claims of the security guards who arrested the plaintiff. Further, there was no evidence in support of his prolonged detention. Mahomed found the arrest and detention unlawful and ordered the defendant to pay the plaintiff R150 000 in compensation.

Apart from her experience in legal practice, Mahomed has served in various lecturer positions. This includes as a part-time lecturer at Technikon Mangosuthu, the University of Johannesburg, the University of Zululand and ML Sultan Technikon Durban. Mahomed has taught mostly corporate law in these positions, in line with her LLM.

October 2024 Interview:

October 2024 Interview Synopsis:

Advocate Mahomed returned to the JSC only one year since her previous interview. The start of her interview set out her acting experience of 60 weeks, pace of judgments writing and attendance of aspirant judges training programs. In her acting stints she had written 85 judgments, Commissioner Mangena acknowledged the quality of them by commending her on her judgments of Eva v Eva, which concerned the duty of support. However, the main topic of interest in her interview revolved around briefing patterns for black counsel.

The first aspect of this topic came up through Mahomed’s discussion with Adv Pillay where she explained that it is more difficult for women of colour to be successful in the advocates profession because of briefing patterns. She demonstrated this by explaining that she is not able to assist in transformation efforts by using black juniors on her matters as she doesn’t receive briefs that even allow her to bring juniors onto her matters at all. In order to assist in transforming the industry she is trying to make her court a learning court when she acts so that junior counsel can get experience as they may not be exposed to it in other ways because of briefing patterns.

The second aspect of this conversation was brought up in her answer to Deputy President Zondi when he questioned her on whether she has practically applied training to litigate class actions in South Africa. She explained that she was included on the team of the Silicosis mine class action where she was able to use these skills. This was one of the first cases which came before the court for certification for class action matters.

Several commissioners had follow up questions on this point started with Adv Ngcukaitobi SC who explained his confusion as this case had caused black advocates to protest because no black advocates were included in the plaintiffs or the defendants teams. Adv Pillay followed on this question pointing out that she would have been one of the only black people on this matter. She asked Adv Mahomed if she noticed there was an issue with the composition of the team? Mahomed noted that there was one more black advocate but because she was new to the bar and was still understanding how things worked the situation was difficult to navigate. She was asked to step down so that legal fees could free up later in the matter which was the reason for the exclusion of her name on the final judgment.

Adv Mahomed was ultimately successful.

October 2023 Interview:

October 2023 Interview Synopsis:

DCJ Maya referred to sentiment expressed by one of the professional bodies that commented on Advocate Mahomed’s candidature to the extent that Mahomed could benefit from more acting stints. Mahomed disagreed with the reasons given by the body for its sentiment, indicating that it had relied only on one case penned by Mahomed to conclude that she required more training on the first principles of costs.

Judge President Mlambo reflected on Mahomed’s time spent acting in the High Court and years of practice as an advocate, asking whether Mahomed felt that this has equipped her to do the work in the Gauteng Division. Mahomed was confident that it did, that her experience and maturity would stand her in good stead for the position.

Commissioner Cane inquired into the impact that Mahomed has been able to make in her 15 years at the Bar. Cane pointed out that Mahomed has only had two pupils in her 15 years at the Bar and has not been involved in the Bar’s leadership structures. Mahomed replied that her personality does not require her to be part of any organisation, but she has nonetheless made contributions to the Bar. On pupillage, Mahomed reasoned that the briefing patterns often obstruct advocates from seeing a pupil through on matters.

Advocate Mahomed was ultimately unsuccessful in her interview.