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Advocate Amelia Marisa Da Silva

Da Silva - Eastern Cape - JSC October 2019 - Judges Matter


Current position: Advocate

Date appointed: Joined the bar in 2004

Candidate bio:

Da Silva was born in Mozambique in 1974 and holds Portuguese citizenship — which legally does not disqualify her from appointment to the high court.

Da Silva grew up in South Africa and is a permanent resident in the country. She is currently “in the process” of applying for SA citizenship.

The Border branch of the National Association of Democratic Lawyers (Nadel) nominated her for appointment, describing her as a “deeply committed human rights lawyer”.

She has spent several stints acting at the Eastern Cape Division of the High Court since 2009.

In dismissing an appeal on sentencing by an accused who was convicted of receiving stolen goods (to which he pleaded guilty), Da Silva found that the three years’ imprisonment sentence, half of which was suspended for five years, was entirely appropriate. The appellant had pleaded guilty, and the appeal in Afrikaaner v S, was thus against sentence only.

“The appellant’s personal circumstances were weighed up against the interests of society, the fact that the appellant had three previous convictions, namely of stock theft and theft, the number of times he had received goods knowing to be stolen and the fact that it did not appear that the appellant would rehabilitate without imprisonment,” she found.

Forty-five year-old Da Silva holds a BA (1996) and an LLB (1999) from the University of KwaZulu-Natal. After serving her articles and working as an attorney she joined the Bar at the end of 2004. Da Silva is the current chairperson of the South African Revenue Service Tax Board.

October 2019 interview:

October 2019 Interview Synopsis: 

Amelia Marisa da Silva, once a pupil of Eastern Cape Judge President Selby Mbenenge, was born in Mozambique – and this fact, with related issues, quickly became a focus of her interview.

Mbenenge raised the matter by saying she had been born in Mozambique and was a Portugese citizen. Did she think she should explain the situation further to the JSC, the JP prompted her.

In reply she said her family had left Mozambique when she was quite young following ‘bombing near our house’. Her father had taken the family first to Swaziland (now Eswatini), then to Pietermaritzburg and then to Umtata. Her parents had ‘never lost their commitment to Mozambique’, she said, and had passed this strong feeling down to their children.

The question of her citizenship status recurred throughout the interview, with at least one commissioner saying, ‘I am very uneasy about it’. Da Silva said she was a permanent resident of South Africa, and was ‘in the process’ of applying for citizenship.

While Mozambique refused to allow dual citizenship (in this case, citizenship of SA and Mozambique), there was no problem in the case of Portugal. So she now held Portugese citizenship which she could retain once her SA citizenship was approved.

Pushed to explain why, at this stage, she had decided to apply for SA citizenship, she said that because of her family ties she had ‘still identified with Mozambique’. ‘But I have come to realise that it is right to become a South African. I practice in South Africa; my friends and family are South Africans.’

Another commissioner commented that the citizenship question ‘raised questions’. ‘We take transformation imperatives very seriously.’

Even though she was not a South Africa, she had been judged by her skin colour, Da Silva replied. ‘I was regarded as “coloured” in Pietermaritzburg. There had been a school in Umtata but she was denied entry. Though not a South African, ‘I was exposed to the effect of apartheid; even though I was not South African I was governed by the laws of South Africa.’

Would she be prepared to consider remaining in South Africa as a South African and renouncing her Portuguese citizenship? She would have to consider that carefully, Da Silva replied.

Advocate Amelia da Silva was not recommended for appointment.