Capacity: Judge
Further appointments: N/A
First appointed as a judge: 01-07-2007
Key judgments: (1) COMPETITION COMMISSION OF SOUTH AFRICA V HOSKEN CONSOLIDATED INVESTMENTS LIMITED AND ANOTHER (CCT296/17) [2019] ZACC 2 (1 FEBRUARY 2019) ; (2) BALENI AND OTHERS V MINISTER OF MINERAL RESOURCES AND OTHERS, UNREPORTED JUDGMENT, CASE NO: 73768/2016, GAUTENG DIVISION, PRETORIA ; (3) NYATHI V SPECIAL INVESTIGATING UNIT 2011 12 BLLR 1211 (LC) ; (4) AVIATION UNION OF SOUTH AFRICA AND OTHERS V SOUTH AFRICAN AIRWAYS (PTY) LTD AND OTHERS (J2206/07) [2007] ZALC 66; [2008] 1 BLLR 20 (LC); (2008) 29 ILJ 331 (LC) (1 OCTOBER 2007)
Gender: Female
Ethnicity: White
Candidate bio:
Prior to her 2016 appointment to the North Gauteng High Court Bench, the 59 year-old Basson had worked as a Labour Court judge since 2007.
She is also a fourth degree Taekwon-do Black Belt and former academic at the University of South Africa (Unisa). From August until November last year (2018) she acted at the Constitutional Court.
At the high court in 2016, Basson was asked to decide the legality of the awarding of mining rights to an Australian company for the Xolobeni area in the Eastern Cape. The local community had been fighting a long-running battle against proposed dune-mining. Over the years political pressure and manipulation of public processes along with the alleged murder of community activists have characterised the community’s fight with the mining company.
In Baleni and Others v Minister of Mineral Resources and Others, the community sought relief in terms of the Interim Protection of Informal Land Rights Act (IPILRA). They argued that the department of mineral resources lacked the lawful authority to grant the license having not obtained the full and informed consent of the applicants and their community.
Finding for the applicants, Basson noted that “customary communities such as the applicants” tend to suffer disproportionately from the impact of mining activities. She held that declaratory relief was appropriate, considering the background of contestation and ongoing high levels of tension relating to the mining right.
Observing that the IPILRA required “consent” from communities, while the Mineral and Petroleum Resources Development Act (MPRDA) required “consultation”, Basson further noted “[t]he importance of considering the broader social and historical context” within which the legislation operated, and found that the IPILRA and the MPRDA were both enacted “to redress our history of economic and territorial dispossession”, and that both acts sought “to restore land and resources to Black people who were the victims of historical discrimination”. The acts therefore had to be read together.
Basson held that the granting of a mining license constituted a “deprivation” as per the IPILRA and that the community’s consent was therefore required before the minerals resources minister could grant it.
An order was granted declaring the minister could not grant a mining right unless provisions of the IPILRA had been complied with, and that he was obliged to obtain full and informed consent before granting any mining right.
During her 2015 interview for the high court Basson was complimented by acting Judicial Service Commission (JSC) chairperson, Deputy Chief Justice Dikgang Moseneke, for her “simply remarkable” academic performance which included several publications dealing, especially, with gender, human rights and sexual harassment in the workplace. These included co-authoring The Employment of Domestic Workers: A Practical Guide to the Law and contributing to the fifth edition of prescribed academic reading, Essential Labour.
In that interview, Basson reiterated the importance of transforming the judiciary to represent the race and gender balance of the country and creating role-models for future generations of aspirant female legal practitioners. She remembered that, while studying law at the University of Pretoria in the early 80s, there was “only one female judge in the Supreme Court of Appeal. When that was raised at one of our classes I thought that I would never get there… Women enhance the judiciary and they are important for the development of the Bench,” said Basson.
During her interview Basson emphasised her commitment to progressive Constitutional values before the end of apartheid: “When I had to choose a topic for my doctorate in the eighties, I chose to deal with second generation human rights, for example the right to strike, [at a time when] we hadn’t even recognised first generation human rights like, for example, the right to vote… This emphasises that I have been committed to human rights, even in the early eighties.”
Basson obtained an LLB (cum laude) from the University of Pretoria in 1984 and an LLD from Unisa in 1990. Her teaching stint at Unisa ran from 1982-2007 where she served as professor of mercantile law from 2003-2007 — during that period she also doubled up as an advocate at the Pretoria Bar.
April 2019 Interview:
April 2019 Interview Synopsis:
The question of land reform dominated North Gauteng judge Annali Basson’s interview — especially her ruling in Baleni and Others v Minister of Mineral Resources and Others (see profile) which related to the Xolobeni community’s fight to preventer dune-mining on their land.
A Pan Africanist Congress member during the anti-apartheid struggle, Basson bemoaned the rampant inequality in South Africa, which she linked to the inability to institute effective land reform. She added that inequality was one of the greatest obstructions to justice in South Africa.
Basson pointed to the Baleni judgment as a demonstrate “that I am sensitive to the needs of the country… and that there is ongoing inequality in the country”.
National Council of Provinces chairperson Thandi Modise noted that in the Baleni judgment Basson had highlighted that “customary communities tend to disproportionately suffer from the impact if mining companies and that her own community was calling for a potential redrafting of the Mineral and Petroleum Resources Development Act (MPRDA).
Basson responded by talking passionately about how mining in the Eastern Cape community would completely destroy the fabric of a community that has remained tightly woven for centuries. She listed the inability of the community to graze cattle, worship the ancestors, use the water which would became polluted because of mining and who mining activity would destroy the link to between communities and their land.
Dali Mpofu, representing the advocates profession, threw a provocation into the mix by suggesting Section 9 of the Constitution (which deals with the right to equality) “did not belong in the same Constitution” as Section 25, which deals with land reform, as it stands. Basson said she “couldn’t agree more… equality is one of the founding values of the Constitution… and we will never be able to heal the wounds… which are still very raw [unless] we… address substantive inequality in all spheres.”
Mpofu said he found the Basson’s Baleni judgment “bold and innovative” which Democratic Alliance MP Henk Schmidt agreed with in asking her to explain her reasoning in the judgment which found that the Interim Protection of Informal Land Rights Act (IPILRA) and MPRDA could be read together. Basson said it was “one of the most difficult judgments I have ever written” and when confronted with “the choice between ignoring one and upholding the other” she was compelled “to read both together”.
“My reasons are there, its a complex issue but there was sufficient grounds that the two acts should be read together,” said Basson.
Supreme Court justice Azhar Cachalia was sitting in for SCA president Mandisa Maya who had recused herself from the interviews of Constitutional Court candidates because of a potential conflict of interest.
Cachalia noted there was “some criticisms” of the Constitutional Court’s private law (delict, commercial, et cetera) judgements and a “concern” that there was “perhaps a lack of skill” at the country’s apex court to deal with such matters. Basson said she could not recall any such concerns, despite her academic background and access to judgements and legal journals where academic articles critical of the court’s judgments in such matters were published.
Basson did “take issue” with Cachalia’s observation that she did not have enough experience in adjudicated private law. She said she had dealt with numerous cases of this nature.
Responding to a question from Sifiso Msomi, one of the four presidential designates, about whether she was a conservative or activist judge, Basson said she “had no hesitation in saying that I am an activist”.
Basson told the commission she moved out of academia and did her pupillage before joining the Pretoria Bar because she needed a new challenge and a new avenue to contribute to society. At the end of her interview Chief Justice Mogoeng Mogoeng embarked on an inexplicable line of questioning — for an interview of a potential Constitutional Court judge — about racism in the Academy and what is to be done when white students undermine black lecturers.
