Capacity: Judge
First appointed as a judge: 31 July 2017 (Labour Court)
Further Appointments: Labour Appeal Court (2023)
Gender: Woman
Ethnicity: African
Date of Birth: July 1971
Qualifications: BIuris (1992)LLB (1994)(UniZulu) Cert.(Industrial Relations)(1997)(Wits) Nexus Leadership Programme (2004)(GIBS)
Key Judgements:
- Solidarity obo Oosthuizen v South African Police Service (JS1030/17) [2023] ZALCJHB 4; [2023] 3 BLLR 258 (LC); (2023) 44 ILJ 882 (LC) (10 January 2023)
- Planet Fitness (PTY) Ltd v Buirski (J1222/2022) [2022] ZALCJHB 309; (2023) 44 ILJ 819 (LC) (8 November 2022)
- Marais v Shiva Uranium (Pty) Ltd (In Business Rescue) (J3049/18) [2018] ZALCJHB 346; (2019) 40 ILJ 177 (LC); [2019] 5 BLLR 472 (LC) (5 October 2018)
- Mofokeng and Others v Rotek and Rochson SOC Ltd (JR264/16) [2018] ZALCJHB 421 (13 December 2018)
- Telkom v CCMA (D1174/17) [2018] ZALCD 28; (2019) 40 ILJ 1093 (LC) (20 December 2018)
Candidate Bio | Updated October 2023
Judge Portia Nkutha-Nkontwana is a judge of the Labour Court, Johannesburg.
Born in KwaThema in Gauteng’s East Rand, Nkutha-Nkontwana started a career as a fulltime commissioner at the Commission for Conciliation, Mediation and Arbitration as a fresh graduate in 1996. At the time, the CCMA was just establishing itself in the democratic era, having been established by the new Labour Relations Act of 1995.
While at the CCMA, Nkutha-Nkontwana dealt with a wide spectrum of cases that came to the CCMA and was delivering upwards of 20 written arbitration awards monthly.
From 2000, Nkutha-Nkontwana ran a labour consultancy while also serving as a part-time commissioner at the CCMA.
She undertook pupillage with the Johannesburg Bar and in 2003 started her private practice as an advocate of the High Court. For 14 years she ran a practice that, while predominantly focused on labour law, also had a fair mix of constitutional and commercial law.
Nkutha-Nkontwana was appointed as a permanent judge of the Labour Court in 2017, following a brief acting stint.
As a judge, Nkutha-Nkontwana has written several important judgments, including in Marais v Shuva Uranium (in business rescue). When their business empire built on state capture-related corruption started to crumble, the Gupta brothers fled South Africa to settle permanently in Dubai. But not before they left a trail of destruction in many of the businesses in their empire, including Shiva Uranium, a mining company. Shiva was placed in business rescue to salvage what remained of the business. In the process, however, employees of the mine were not paid their salaries. They therefore sought an urgent order from the Labour Court for the payment of their salaries. After first dealing with the preliminary issue of jurisdiction of the Labour Court in business rescue-related litigation (which she found that it did), Nkutha-Nkontwana dismissed the employee’s application on the basis that it lacked urgency. Secondly, the employees had ‘substantial’ redress should the business rescue process proceed, as the salaries owed by the company to them will be prioritised above other claims, unlike in the insolvency process.
In the little over 5 years that Nkutha-Nkontwana has served as a judge of the Labour Court, she has already amassed nine reported judgments. Of her seven judgments that have been taken on appeal, only three have been overturned while four have been confirmed either the Labour Appeal Court or the Constitutional Court.
In her JSC application form for promotion to the Labour Appeal Court, Nkutha-Nkontwana was asked what her most significant contribution to justice is, and she says:
“I am always alive to the fact that I am a product of support, mentoship and encouragement. As a result, I constantly return the favour when opportunities avail themselves. In this regard, I have successfully encouraged my former secretary to register for pupillage ; and my nail technician to register for an LLB degree and she is currently in her third year.”
October 2023 interview
Judge Madeline Nkutha-Nkontwana’s October 2023 interview for a position on the Labour Appeal Court was successful. She was nominated for appointment.
April 2017 interview
Interview Synopsis:
“As an African woman you struggle,” said Advocate Portia Nkutha-Nkontwana, describing her experiences at the Bar to the Judicial Service Commission (JSC), “when you compare your practise to colleagues who are white, its like you just started yesterday.”
Nkutha-Nkontwana said things were changing slowly and that of late, she had been getting more briefs from the state attorney’s office.
She was asked about her ability to deliver judgments timeously and admitted that she had taken as long as seven months to hand down judgment in one matter. Nkutha-Nkontwana attributed this to overeagerness to apply one’s mind, “with support from senior judges you curtail your judgments,” she said.
Nkutha-Nkontwana was also shortlisted for the Electoral Court interviews, but withdrew her availability at the end of her interview.
