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Advocate Seena Yacoob SC

Candidate profile:

A seasoned advocate, Seena Yacoob SC, has appeared several times in South Africa’s superior courts.

During one appearance at the Constitutional Court, Yacoob weathered a barrage of questions from a particular judge regarding the need to infuse constitutional values into contract law.

Her interrogator? Former justice Zak Yacoob — her father.

Zak Yacoob had previously written the minority judgment in Everfresh Market Virgina v Shoprite, finding that such infusion was significant enough for the high court to develop the common law. A view he was at pains to further when his daughter appeared for the state in a separate matter and had argued the court’s majority judgment — which had been reticent on the issue — was the correct approach to adopt.

Since 2013 Seena Yacoob has had several acting stints at the Gauteng Division of the High Court. In the last two years she has also acted twice at the Land Claims Court.

Yacoob has demonstrated a sense of social justice and the progressive values in the Constitution when hearing matters pertaining to socio-economic rights.

Mdakane and Another v Colchester Zoo Properties (Pty) Ltd, was an application for relief, including the restoration of running water and a declaration that the applicants were labour tenants in terms of the Land Reform (Labour Tenants) Act (LRLTA). There was a counterclaim for the eviction or relocation of the first plaintiff under the Extension of Security of Tenure Act (ESTA).

Yacoob held that the second applicant, Mrs Maduna, was not a labour tenant — as defined by the LRLTA — because she had failed to provide evidence that her family had lived and worked the land in question for at least two generations previously.

Dealing with the counterclaim, Yacoob found that Colchester Zoo’s contention that it had not given the first applicant, Mrs Mdakane, permission to live on the land and therefore she had not right to it, was without merit.

“Mrs Mdakane was given consent … when she arrived with Mr Mdakane in 1985. ESTA provides … that consent is binding on successors in title. Section 24(1) also provides that an occupier’s rights are also binding against successors in title. Mrs Mdakane’s consent to remain on the farm has never been lawfully terminated,” Yacoob found.

Finding that there was no basis for Mrs Mdakane’s eviction, Yacoob noted that her “rights of cropping, grazing and other use of the land have been gradually but definitely reduced” as Colchester Zoo spent millions to transform the land “into a dedicated game farm on an increasingly ambitious scale.”

“ESTA defines ‘evict’ to include depriving a person against her will “of the use of land … which is linked to a right of residence in terms of [ESTA],” Yacoob noted.

She ruled that neither Mrs Mdakane nor Mr Maduna were labour tenants, but that both were occupiers in terms of ESTA and that Mr Maduna could only be evicted in terms of that act. Yacoob also held that were no grounds for evicting Mrs Mdakane and that Colchester Zoo was entitled to relocate her but had to ensure that her rights to cropping and grazing were retained.

Yacoob has also demonstrated a lucid legal eye when adjudicating administrative justice and civil procedure cases.

Before completing her LLB at the University of Cape Town (2000) and an LLM at Vrije Universiteit Amsterdam (2006) Yacoob obtained her bachelor of music degree in 1996 at the then University of Durban-Westville.

Yacoob joined the Johannesburg Bar in 2003 and was conferred silk (senior counsel) in March 2018. She served as national deputy secretary for Advocates for Transformation from 2010-2013 and Honrary Secretary of the Johannesburg Bar Council from 2008-2009 among other positions.

Prior to her becoming an advocate she worked as a researcher at an attorney’s firm and, at the Land Claims Court from 2001-2003. According to her Thulamela Chambers online profile, her “preferred areas of practice include administrative and constitutional, telecommunications, pension fund, land claims and property, as well as competition law”.

Her publications include co-authoring a chapter on licensing in the co-authored book, Telecommunications Law in South Africa and the non-enforcement of arbitral awards in the Griffins View on International and Comparative Law journal.

October 2018 Interview

October 2018 Interview Synopsis

“I’m believe I am ready [to be appointed to the judiciary]. I’m the sort of person who needs to make a difference and I believe that the high court is the place to do that… I believe in the Constitution,” said Advocate Seena Yacoob SC when Chief Justice Mogoeng Mogoeng asked her why she should be chosen for appointment to the Bench.

Yacoob made light work of the questions posed to her during her ultimately successful interview where pretty much every commissioner — from the Mogoeng to various lawyers — declared that they knew either her, or her family. The mark of a successful senior counsel who has litigated in several high-profile cases in South Africa’s superior courts — who also happens to be the daughter of former Constitutional Court judge Zak Yacoob.

Yet, despite this apparent success, Yacoob told the commission that she had struggled for briefs during her career and had not been as successful as male contemporaries in this regard — a searing indictment of the patriarchy still prevalent in the legal profession.

Seena Yacoob has previously acted in the Land Claims Court and she told the Judicial Service Commission (JSC) that she found it “emotionally taxing” because the people most “deeply affected” by the court’s decisions “have very little”.

She told the JSC that the court was hampered by “an absence of permanent judges” which had a “huge impact” on case management and “continuity” when new judges had to pick up cases previously heard by others. She said the “itinerant” nature of the court, which has “no sitting office”, meant it had neither “institutional memory” nor “collegiality”.

As sometimes happens at JSC interviews, commissioners veer into pressing societal problems and phenomena, asking the kind of questions that suggests candidates are applying for the job of Oracle, rather than judge.

So Yacoob had to contend with several questions regarding land and the topic on every South Africans lips: expropriation without compensation.

She told the commission that many of the Land Claims Court’s problems around bottle-necks existed prior to their actually appearing before judges. Yacoob said she was not qualified to respond to whether land reform was slow because of the “piecemeal approach” to it or whether it would be speeded up if all land was expropriated by government which then decided on what to do with it.

She also told commissioners that how South Africa resolved the land question was “a policy issue” for “parliament” to decide on, “I don’t know enough about it.”

Yacoob confirmed that she was indeed a gender activist concerned with transformation of the legal fraternity and the judiciary which she committed to, though her words and actions, on a daily basis.