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Judge Esther Johanna Steyn

Capacity: Judge
First appointed as judge: 1 January 2009 (KwaZulu-Natal)
Gender: Female
Ethnicity: White
Date of Birth: August 1962
Qualifications: B.Iuris, (UNISA) LLB (UWC) LLM (UCT)

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Candidate Bio:

Judge Esther Steyn is currently a judge of the KwaZulu-Natal High Court (Durban and Pietermariztburg).

Born and bred on the other side of Cape Town’s infamous ‘boerewors curtain’ separating the predominately Afrikaans-speaking northern suburbs and the English-speaking southern suburbs, Judge Esther Steyn spent most of her life within sight of Table Mountain and the breeze of the Two Oceans.

After matric, she immediately started working in the legal sphere. In 1980 Steyn worked her first job with the Department of Justice as a clerk of the criminal and civil court. From 1984 until 1986 she was a district court prosecutor.

In 1987, she was appointed to the bench as district court magistrate. Steyn remained in the position for three years only, whereafter she returned as senior prosecutor at the Goodwood and Wynberg criminal courts between 1991 and 1995.

The academic bug bit Steyn and she transferred all her criminal law knowledge and experience into training the next generation of lawyers.

She joined the University of Cape Town’s department of criminal justice as a senior lecturer in 1996, where she taught criminal law (specific offences), the law of evidence and criminology. She also taught at the University of the Western Cape.

During her time in academia Steyn delivered papers at numerous local and and international conferences, and penned several legal publications, including some with her mentor, world-renowned criminologist Prof Dirk van Zyl Smit. She wrote journal articles on the human rights impact of pre-trial detention, a Scotland/South Africa comparison on undue delays in criminal trials, and one on a series of Constitutional Court judgments impacting on rights to liberty, which was published in the SA Journal on Human Rights.

Steyn’s straddling of both criminal practice and the academic world was seen through her Specific Offences course, which required students to spend time in actual criminal court.

She was also involved as an assessor in criminal trials (1996 – 2002), a task team investigating Pagad-involved vigilante murders, and as a member of the Jali Commission into corruption, maladministration, violence, and intimidation in the Department of Correctional Services (2002 – 2005).

During 2007 Steyn joined the Aspirant Women Judges programme, and from the beginning of 2008 took up several stints as an acting judge in the Western Cape and Northern Cape high court divisions.

Typical of the system at the time, which no longer exists now, Steyn was then permanently appointed as a judge on 1 January 2009 in the Kwa-Zulu Natal High Court in Durban.

As a judge she has written several important judgements in various legal fields including administrative law, constitutional law, property law, and civil procedure. However, her most significant impact, and where she’s penned the most reported judgments, has been on criminal law and procedure.

In the Naidoo v Regional Magistrate the applicant, Mr Naidoo, sought to review in the high court the magistrates’ court refusal to permanently stay criminal proceedings against him. Mr Naidoo faced 171 counts of fraud, alternatively 171 counts of theft.

The issue that Steyn needed to decide in this case was “whether the regional magistrate had the necessary jurisdiction to entertain the application of a stay of the proceedings in circumstances where the court was not specifically authorised by a statute to do so.”

In deciding the case Steyn emphasised that magistrates’ courts are creatures of statute and, unlike the High Courts, do not have any inherent jurisdiction. Section 170 of the Constitution, she went on, does not confer jurisdiction on magistrates’ courts to hear applications that are not specifically authorised by an Act of Parliament. As a result, she found that the regional magistrates court lacked the necessary jurisdiction to hear the application to permanently stay the proceedings, and therefore set the refusal aside. Steyn ordered that the proceedings start afresh before a different magistrate.

In State v Zuma, Steyn similarly faced another request for a stay of criminal proceedings and this time from former President Jacob Zuma, on the basis that the prosecutors had acted improperly in his fraud, corruption, and money laundering trial, and this tainted the whole proceedings. Writing on behalf of the court alongside two other senior judges, Steyn dismissed the stay of prosecution and ordered that the criminal trial commence forthwith.

In the ground-breaking judgment of CMC Woodworking Machinery, Steyn found that it was perfectly acceptable to serve court documents over Facebook. In that case, the plaintiff, CMC Woodworking’s attorneys had spent nearly 2 years trying to track down the defendant’s whereabouts in order to give him notice of the impending trial. Without success, they asked Steyn to order a substituted service via Facebook, where the defendant was seen to be active, including recent photographs of him socializing with friends that he had uploaded on his Facebook album.

After summarizing the legal framework, the defendant’s privacy rights, and the practical difficulties the plaintiff had faced, Steyn authorized the delivery of the trial notice to the defendant’s Facebook messenger inbox.

The judgment sent shockwaves through the legal profession, and several journal articles have been written on it, including in the Stellenbosch Law Review, the Tydskrif vir die Suid-Afrikaanse Reg, the legal magazine Without Prejudice, and website Tech4Law.

Outside of the courtroom, Steyn has served as vice-chair (and sometimes chair) of the National Council of Correctional Services (2015 – 2019), a body tasked with advising the minister on correctional service and sentencing policy. She has also served on several committees in the KZN High Court, including on budget, criminal case management, acting judges, and researchers.

The 60 year-old Steyn holds a B.Iuris from Unisa (obtained in 1984), an LLB degree from UWC (obtained 1992) and an LLM from UCT obtained in 1999.

With experience in the rough and tumble of prosecuting hardened criminals, the plush ivory tower of academia on the slopes of Table Mountain, and the wood and velvet-panelled courtrooms of the KZN high court, Judge Steyn now seeks to be appointed as the Judge President of the Kwa-Zulu Natal High Court division.

In a moving tribute to the late Judge Jerome Mnguni who passed away suddenly, Steyn writes in the December 2021 edition of the Advocate magazine:

“Jerome and I met on 2 January 2009, when we commenced our judicial careers in this division. We soon realised that we were kindred spirits and talked about our children and families. Working during a long recess meant that we had some time to familiarise ourselves with issues of policies and practices of the KZN division. Over time we came to share similar hopes and aspirations for the division. In fact, we would encourage each other during the hard times, often remarking that as we had started the judicial race together we would finish it together. Sadly. This is no longer to be for him.”

Might this have been a sign of things to come, and possibly her elevation to the top job in the KZN High Court? Only time will tell.

October 2022 Interview

October 2022 JSC interview of Judge Esther Johanna Sophia Steyn for the position of Judge President of the KwaZulu-Natal Division of the High Court. Judge Steyn’s application was unsuccessful.