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Judge F B A Dawood

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Capacity: Judge
First appointed as a judge: July 2008 (Eastern Cape High Court, Mthatha)
Gender: Female
Ethnicity: Indian
Date of Birth: May 1969
Qualifications: BA (Law) (1989) LLB (1991) (University of Durban-Westville)

Key judgments:

 

Candidate Bio | Updated September 2026:

Fathima Dawood is a Judge of the Eastern Cape Division of the High Court, seated in Mthatha.

Judge Dawood studied at the University of Durban-Westville, graduating with a BA in Law in 1989 and an LLB in 1991. She was admitted as an advocate in 1992 and practised at the Durban Bar for sixteen years, until her permanent appointment as a Judge of the High Court in 2008.

In respect of her professional activities, she has since been a member of the International Association of Judges for Refugees and Migrants, Moderator and Member of the National Bar Examinations Board, and Chairperson of the Eastern Cape Judges Library Committee. She has had numerous acting stints, mainly as a Judge of the Supreme Court of Appeal (SCA) and Acting Deputy Judge President of the Eastern Cape High Court in Mthatha.

Early in her career, Dawood helped shape South Africa’s hate-speech law. In Herselman v Geleba, Dawood J sat on appeal from the Equality Court, where a farm owner, Johan Rutgert Herselman, had called his employee, Khayalethu Eric Geleba, a ‘baboon’ during a workplace confrontation. Herselman defended his conduct by claiming he merely told Geleba not to act like a baboon and had no subjective intention to cause hurt or insult. Dawood J firmly rejected this argument, ruling that directing the epithet at a Black person carries an undeniable racial connotation that undermines human dignity.

Applying an objective test based on the perception of the recipient community rather than the subjective intent of the speaker, she affirmed that under section 10(1) of the Equality Act (PEPUDA), speech is unlawful hate speech if it is hurtful, harmful or spreads hatred, with any one of the three criteria being sufficient under a disjunctive reading.

She further highlighted that Equality Courts were specifically created to give ordinary citizens an accessible, expeditious and informal route to justice. The judgment remains a frequently cited precedent on the objective assessment of hate speech. However, Dawood’s best-known judgment came not from her local division, but during her appointment to the SCA.

In Edward Nathan Sonnenberg Inc v Hawarden, while acting in the SCA, Dawood delivered the unanimous ruling in one of South Africa’s most significant cases on delictual liability for cyber-fraud.

The facts are that Judith Hawarden was purchasing a Johannesburg property for R6 million. Cybercriminals intercepted the email chain with the seller’s conveyancing attorneys, the prominent firm Edward Nathan Sonnenbergs (ENS), manipulated the firm’s bank details on an FNB letterhead and diverted Hawarden’s R5.5 million payment into a fraudulent account. The High Court held ENS liable for pure economic loss, finding that the firm owed a legal duty to warn her of Business Email Compromise (BEC) risks and use secure communication channels.

Dawood overturned that decision in June 2024 and dismissed Hawarden’s claim. Clarifying the principles governing wrongfulness for negligent omissions causing pure economic loss, she held that ENS owed Hawarden no legal duty of care. Crucially, Hawarden was not ‘vulnerable to risk’ because she had ample means to protect herself: she could easily have verified the banking details over the telephone, as she had previously done with her estate agent, or opted for a secure bank guarantee rather than an electronic funds transfer.

Dawood warned that holding ENS liable would unfairly shift responsibility away from a debtor who failed to guard against a known risk, while exposing an ‘indeterminate’ class of creditors and professionals to open-ended claims whenever third-party criminals hijack email communications. The judgment stands as a defining reference point for risk allocation in South African cybercrime litigation.

Closer to home, Dawood adjudicated a seminal medical-negligence claim on the Eastern Cape High Court roll in Nontangane v MEC for Health, Eastern Cape.

In this matter, Aphelele Nontangane sued the provincial health department after her son was born at All Saints Hospital in October 2013 with hypoxic ischaemic encephalopathy (HIE) and cerebral palsy. She contended that hospital nursing staff breached their duty of care by failing to monitor the fetal heart rate during labour and missing signs of fetal distress.

Dawood strongly condemned the nursing staff’s monitoring and record-keeping as appalling, substandard and manifestly negligent. However, she dismissed the claim on the element of factual causation. Weighing extensive expert medical testimony, Dawood adopted the peer-reviewed obstetric research presented by Prof Buchmann, concluding that the child suffered an ‘acute profound’ hypoxic insult, a sudden, catastrophic loss of oxygen occurring in the final 15 to 30 minutes before delivery. Because such an event occurs without warning and causes irreversible brain damage before any emergency delivery or intervention could be executed, even optimal monitoring would not have prevented the harm.

The ruling remains a classic example of judicial discipline in keeping negligence and causation strictly distinct in birth-injury litigation. The plaintiffs went on to appeal Dawood’s judgment before the Supreme Court and eventually before the Constitutional Court, with their appeals being dismissed.

Dawood now brings an unusually full acting portfolio to the contest, having been an Acting Deputy Judge President in both Mthatha and Gqeberha, while also carrying with her acting stints at the SCA in 2024. That appellate experience and approximately 18 years on the Bench may set her apart in the race for Deputy Judge President.