Capacity: Justice of Constitutional Court
Appointed to the Supreme Court of Appeal: 2009
Further appointments: N/A
First appointed as a judge: 25-07-2005 to the South Gauteng High Court
Key judgments: (1) Scholtz v NDPP (69/2018) [2019] ZASCA 136 (1 October 2019) ; (2) Lewarne v Fochem International (Pty) Ltd (1073/18) [2019] ZASCA 114; (2019) 40 ILJ 2473 (SCA) (18 September 2019)
Gender: Female
Ethnicity: African
Candidate bio:
Born in Qingana in the Eastern Cape, Zukisa Tshiqi has served at the Supreme Court of Appeal (SCA) since 2009 and has spent two terms acting at the Constitutional Court in 2015.
During her stints at Constitutional Hill Tshiqi penned a unanimous judgment in the matter of City Power (Pty) Ltd v Grinpal Energy Management Services & Others.
City Power, an entity of the Johannesburg Municipality, had outsourced the provision of electricity to Alexandra township to a private entity, Grinpal. When the service level agreements were subsequently terminated the parties agreed that City Power would take over from Grinpal. The bone of contention, however, was whether, upon termination of the service level agreements, there was a transfer of business as a going concern as contemplated in Section 197 of the Labour Relations Act. Ruling in favour of Grinpal, the Labour Appeal Court had found that a transfer had taken place.
In dismissing City Power’s appeal Tshiqi noted that a “mere reliance” on the point that it was a private company ignored the fact that such entities “are usually established for the sole purpose of performing public functions”. The “public nature” of these functions and the “restrictions imposed on such municipal entities by the Municipal Systems Act distinguish them from other private entities,” Tshiqi held.
Comparing City Power to the South African Social Security Agency (Sassa) Tshiqi found that the “Johannesburg Municipality cannot avoid its constitutional obligations and public accountability for the rendering of public services by forming a municipal entity like City Power. It remains accountable to the people of South Africa for the performance of those functions by City Power. Likewise, City Power cannot avoid its constitutional obligations and public accountability by delegating its functions to Grinpal.”
In Coughlan NO v Road Accident Fund, her first judgment written at the Constitutional Court, Tshiqi overturned an SCA decision which found that foster child grants were deductible from compensation paid by the Road Accident Fund (RAF) for loss of support.
Writing for a unanimous majority, again — which may suggest she was not given the toughest of assignments when scribing at the court — Tshiqi dismissed the RAF’s contention that not deducting the foster child grants would amount to “double compensation”.
Tshiqi found that loss of support payments made to children were to compensate for the patrimonial loss “suffered by the loss of the monetary contribution that the
deceased parent would have made towards the support of the child. It forms part of the patrimony of the child. It amounts to an income replacement resulting from the death of the parent as a result of a motor vehicle accident. There is no conceivable basis on which to deduct payments made to foster parents (that the child has no claim to) from the child’s award for compensation for loss of support.”
On whether child support grants were different from foster care grants, Tshiqi concluded that the former was similar to the latter and should not be factored into any compensation calculations. The appeal succeeded with costs.
While at the SCA Tshiqi has ruled on some interesting cases, including whether the arrest and prosecution of a gang who robbed truck-drivers resting on the N3 highway was legal because they had been nabbed by policemen, including an undercover agent who had participated in some of the criminal acts.
“The use of undercover agents is long-established and acceptable in our constitutional democracy. What has to be balanced is a respect for the Bill of Rights and respect for judicial process,” Tshiqi said. “The State says the basis of the operation was to protect the public. The actions of the syndicate not only exposed victims to violent conduct but also had huge implications for the economy because of transportation delays.”
Tshiqi found that had the undercover agent, code-name “Darryl”, not “infiltrated the syndicate, the probabilities are that it would have continued. The public would balk at the idea that law enforcement agencies failed to act against an organised crime syndicate because of the fear there may be a danger to the public. Indeed the reaction would be one of shock, fury and outrage,” she said, ruling that the convictions must stand.
Tshiqi obtained her B.Proc from the University of Witwatersrand in 1989 and an advanced diploma in labour law from the then-Rand Afrikaans University (now University of Johannesburg) in 2001. She worked as an attorney before being appointed to the South Gauteng High Court in 2005.
She was nominated by the Black Lawyers Association, of which she has been a member since 1991. Keen to impart her skills to the next generation of jurists, Tshiqi has taught in South African Judicial Institute programmes on judgment writing and is deputy chairperson of the African Regional Judges Forum on HIV and Human Rights.
April 2019 Interview:
April 2019 Interview Synopsis:
The fractious atmosphere at the Supreme Court of Appeal (SCA) appeared to consume some members of the Judicial Service Commission (JSC) more than candidates’ suitability for appointment to the Constitutional Court. This was especially true of SCA Judge Zukisa Tshiqi’s interview, and that of her colleague Stevan Majiedt.
The majority of the questions revolved around an apparent “Top Six” senior judges at the court who allegedly behaved in an unbecoming manner, including shouting at colleagues who were acting at the appeals court, and kept all the plum cases to be heard by themselves.
She was also asked whether disciplinary procedures for such behaviour was adequate (yes) and why senior judges were not acting in a decisive manner, and how this affected the court’s functioning?
She also told the commission that her acting stint at the Constitutional Court had been “enriching”, having enjoyed sitting with more judges during hearings and the “flurry of emails” which followed.
Submissions from the General Council of the Bar pointed out that of the 216 cases that Tshiqi had adjudicated she had written the majority decision in only 34 (18%) and suggested she needed more time to fine-tune her judgment writing and overall skills.
Tshiqi told the commission that she was always guided by the Constitution in all the matters she heard.
Commissioner Sifiso Msomi, one of four presidential designates to the JSC, asked Tshiqi whether the courts still approach the law in a “formalistic” manner or whether there was “substantive” effect to the law, especially in transforming ordinary South Africans’ lives.
Tshiqi said in a country like South Africa one “can’t be formalistic” as a judge and that she considered herself “an activist in the sense that you have the Constitution you have to be mindful of.”
Tshiqi gave an average, if unspectacular, account of herself and she was recommended for appointment by the JSC.
