Capacity: Judge
Appointed to the Supreme Court of Appeal: 2019
Further appointments: N/A
First appointed as a judge: 26-08-2009 to the Gauteng High Court
Key judgments: As AJA in SCA: (1) Dombo Community v Tshakhuma Community Trust & others (1078/2017) [2018] ZASCA 190 (19 December 2018)
Gender: Female
Ethnicity: White
Candidate Bio:
A judge at the South Gauteng High Court since 2009, Nicholls has previously acted at the Supreme Court of Appeal (SCA) from October 2016 – March 2017 and June – November 2018.
During that time, one of the judgments she penned pointed to the bottle-necks and institutional failures that continue to negatively impact land reform in South Africa.
Dombo Community v Tshakhuma Community Trust and Others was an appeal against a Land Claims Court (LCC) judgment dismissing an application to rescind a default judgment setting aside the approval of the appellant’s approved land claim in favour of the respondents.
Writing for the majority, acting judge Dumisani Zondi (with three others concurring) found there was good cause to set aside the default judgment as the LCC failed to clarify the factors considered in exercising its discretionary power to dismiss the rescission application. The majority found the LCC had also failed to deal with the prospects of success. The SCA finding also the matter was of importance to both parties and given the constitutional foundations behind the Restitution Act, the principle of fairness had to be upheld.
Writing a separate concurring judgment, Nicholls had different reasons for upholding the appeal, also losing several “obstacles” the Tshakhuma Community Trust would have to overcome to be successful.
“I would exercise the wide discretion that a court exercises in applications for rescission. There is a woeful paucity of information.
The main application is not before us. The judgment of the court a quo does not shed any light. There is a suggestion that other land may be involved which does not form part of the merged land claim and against which the Dombo’s may have a legitimate claim. This is not clear on the papers before us,” she wrote.
“Claims for restitution of land arise out of the country’s horrendous history of land deprivation which the Restitution Act seeks to correct. It is important that the claims of each community are fully ventilated. In my view it is for the Land Claims Court to make a final determination once it has all the facts before it. For this reason, I concur with the main judgment.”
In ordering South African Airways to pay almost R105-million in damages to Nationwide Airlines, which liquidated in 2008 following anti-competitive behaviour by the national carrier, Nicholls appears to have opened a new area of claims in the law of delict.
In quantifying Nationwide’s lost profit, Nicholls looked at the plaintiff’s performance before the abuse and after the abuse and estimated how it would have performed had the anti-competitive conduct been absent. She held that a linear interpolation model, that used market share on all routes, was the appropriate methodology to make the estimation. This was balanced with a contingency deduction to arrive at the final determination of damages.
A 2017 De Rebus article anticipates that “the judgment will play a significant role in future litigation of this kind and will undoubtedly serve as the judgment that will get the wheels of private competition damages actions moving in the right direction”.
The 62-year-old Nicholls obtained a BA (1977) and an LLB (1978) from the University of Cape Town. After serving articles she worked as an attorney, including as a partner of various law firms, until her appointment to the Bench.
April 2019 Interview:
April 2019 Interview Synopsis:
The Judicial Service Commission (JSC) sometimes has two distinct approaches to candidates with impeccable struggle credentials: fawning or devouring the candidate.
The former happened to Gauteng High Court Judge Caroline Heaton Nicholls, and she was successfully recommended for appointment to the Supreme Court of Appeal (SCA). The latter to her husband, the eminent struggle activist and lawyer Gcina Malindi SC, during an unsuccessful 2016 interview for a high court position in Gauteng.
Heaton Nicholls and Malindi had met during the Delmas Treason Trial, where he was one of the accused and she, his lawyer. Chief Justice Mogoeng Mogoeng noted that they broke the law, the Immorality Act in particular, to titters from the commission.
Which increased when, before asking questions, Advocate Dali Mpofu SC, representing the advocates profession, declared knowing the candidate for a long time and being close family friends, especially with his former partner.
In fact, Mpofu mused, we broke the law at the same time — but not together. Cue much louder laughter.
As ever the toxic and hierarchical atmosphere at the SCA was not far from commissioners’ questioning lips. She told the commission that after her first six-month stint acting at the appellate court, she had thought to herself, “never again”, describing the environment as “difficult” and where one was “basically made to feel unwanted, incompetent and incapable”. However, Heaton Nicholls said she eventually came around to the position that “they would not destroy me like this”.
When SCA President Mandisa Maya asked Heaton Nicholls what could be done to address the “gender crisis” at her court, she suggest the reintroduction of six-month judicial courses for aspirant female judges, where judgments were marked every week and feedback provided. This would build competence and self-esteem, she said.
She assured Maya that the SCA’s “toxic masculinity mixed with racism” would eventually be changed, but that it took time.
On the proposition by attorney CP Fourie that the SCA and the Constitutional Court could be brought together to alleviate the workload at the highest court while streamlining justice, Heaton Nicholls said she “notionally” had a problem with two layers of appeals.
She said having sat in the high court, SCA and Constitutional Court recently, she found it “remarkable” how many matters found their way from the appellate division to the apex court. This appeared to add “an unnecessary layer of appeal” with added costs to litigants.
