Capacity: Judge
Further appointments: N/A
First appointed as a judge: 01-11-2017
Key judgments: As Acting Judge: (1) BOOYSEN V JONKHEER BOEREWYNMAKERY (PTY) LTD AND ANOTHER [2016] ZAWCHC 192; [2017] 1 ALL SA 862 (WCC); 2017 (4) SA 51 (WCC) ; (2) COASTAL LINKS LANGEBAAN AND OTHERS V MINISTER OF AGRICULTURE, FORESTRY AND FISHERIES AND OTHERS [2016] ZAWCHC 196 ; (3)
Gender: Male
Ethnicity: White
Candidate Bio
Advocate Mark Sher SC replaced acting judge Leslie Weinkove in the Bromwell Road eviction matter following the latter’s dismissive attitude and “baaskap” mentality towards the families facing eviction.
Sher has demonstrated a “big picture” understanding of socio-economic rights contestation in the courts and has delivered judgments which are empathetic to the underprivileged and sensitive to the transformative vision of the Constitution.
In Coastal Links Langebaan and Others v The Minister of Agriculture, Forestry and Fisheries, he was asked to set aside a decision by the agriculture minister to impose restrictive conditions in the permits of small-scale fishers.
In his ruling, Sher noted that the fisheries ministry was relying on the 2005 Netfishing Policy, “which provide that persons who do not live “adjacent” to the fishing zone in respect of which they have applied for fishing rights, should be excluded from obtaining such rights. … The requirement of residential adjacency appears, at face value, to be intended to protect the fishery from exploitation by persons who do not have any immediate connection with the area, and one can understand the objectives of such a policy, for example, in the context of deep-sea trawling where local fishermen need to be protected from the rapacious exploitation of marine resources by foreign fishing trawlers.”
However, Sher noted that the provisions were being used “perversely” to exclude “historically disadvantaged black fishermen whose ancestors used to live adjacent to the lagoon before they were forcibly removed from the area by the apartheid regime as part of its spatial planning”.
He found that the provisions, while “having a laudable intention, serves to discriminate indirectly between white fishermen who now reside” along the lagoon “at the expense of black, historically disadvantaged fishermen who used to live there”.
Sher found the minister’s decision was arbitrary and irrational and constituted unfair discrimination against the small-scale fishers on the grounds of race, and therefore unconstitutional.
After completing his LLB at the University of Cape Town, Sher worked there for two years as a lecturer — during which time he was admitted to the Bar — after which he worked as a prosecutor and state advocate. He was conferred silk in 2015. In 1994 Sher was a presiding officer at the Election Tribunal.
October 2017 Interview:
October 2017 – Interview synopsis
The lack of transformation at the Cape Bar, and issues of social transformation more generally, dominated Advocate Mark Sher SC’s interview for a position at the Western Cape High Court.
Some of the reasons for the staggeringly low representation of black advocates at the Cape Bar, according to Sher, included junior members not being assisted with rental costs, the 60-day fee rule which leaves many juniors in a precarious financial position, skewed briefing patterns and the historically low number of graduates from law schools.
The candidate said the numbers at the Cape Bar — 355 white advocates and 111 black advocates (60 “coloured”, 26 black African and 16 “Indian” members) — was “not encouraging”. He said an attempt to increase the number of black silks at the Cape Bar included an unwritten rule that only white advocates who had served 14 years at the Bar could apply for their letters patent while “understandably, black counsel are not limited by that rule”.
Free State Judge President Mahube Molemela, observing that Sher had “lamented the skewed briefing patterns” asked him what he had done to address this.
He said he had tried to get briefs from black senior counsel and bring on black and female juniors but the “difficulty” was that he was usually acting for the “little man against government and companies on the basis of ‘If I win, we get paid by the other side, if I lost, we wouldn’t get paid.’ Not many people want to enter into that arrangement,” he said.
Sher admitted that in 2010 he had gone six months before handing down a judgment, something he was “embarrassed about to this day”. “I got caught up in the matter and I made more of a thesis of it,” he told the commission.
