Profile
Current position: Advocate
Date appointed: Joined the bar in 2003
Candidate bio:
Kusevitsky has acted at the Western Cape Division of the High Court for three terms in 2017 and a further three terms in 2018.
In that time she has had to deal with some of the messy business dealings involving South African companies, and family members, in Africa — in the 2017 matter of Swanepoel & Others v Swanepoel, and the Democratic Republic of Congo (DRC) specifically.
The applicants, including Erhard Swanepoel and the company Swanepoel Enterprises SA, had asked that an order granted in their favour by Kusevitsky on 17 September 2017 not be suspended by the application for leave to appeal lodged by the respondent, Luc Swanepoel. The applicant also sought to ensure that the order granted would continue to be operational and enforceable until the final determination of all present and future applications and appeals in respect of that order.
Kusevitsky’s 17 September 2017 ruling required Luc Swanepoel to withdraw various allegations made to the Congolese authorities about the ill-treatment and non-payment of workers employed by his relative and the company in the DRC. These allegations had led to Erhard Swanepoel being arrested and detained in Lubumbashi when he had tried to return to South Africa.
Focusing on section 18 of the Superior Courts Act and its requirements of “exceptional circumstances” and “irreparable harm” Kusevitsky AJ held that “[t]he threat to one’s personal freedom, notwithstanding the fact that it is an enshrined right in our Bill of Rights, in my view constitute exceptional circumstance as envisaged in the Act and the applicants have indeed shown that they will suffer irreparable harm should the order remain stayed.”
She ordered that the operation and execution of the order granted on 17 September 2017 was not to be suspended by the petition lodged by the respondent, nor by any appeal lodged by the respondent in the future.
The nine months it took Kusevitsy to hand down judgement in Clarke v MEC for Health Western Cape and Another may set alarm bells ringing for Chief Justice Mogoeng Mogoeng who is a stickler for the three months maximum allowed for judges to hand down judgments.
In this matter the plaintiff brought an action against the provincial health department arising out of injuries allegedly sustained by her when she underwent a laparoscopic cholecystectomy (where the gallbladder or gallstones are removed using several small cuts and a tube with a camera), which was converted into an open cholecystectomy (removal occurs via a single large incision).
The plaintiff alleged that during this operation, the surgeons negligently and in breach of their duty of care caused an injury to the plaintiff’s colon, which later resulted in the perforation of the colon.
After hearing the expert witnesses, Kusevitsky found that the experts held two opposing views. Drawing on Mitchell v Dixon, Maitland and Kensington Bus Co (Pty) Ltd v Jennings, Medi-Clinic v Vermeulen and F M v Member of the Executive Council, Department of Health, Eastern Cape, Kusevitsky concluded she had to decide whether one view was more probable than the other.
She found that on every point where negligence was suggested, the evidence was in favour of the health department and dismissed the claim with costs.
The forty-seven year-old Kusevitsky has an LLB (2002) and LLM (2005) from the University of the Western Cape. Curiously, she does not list an undergraduate degree in her application form. Other qualifications include a certificate in medical negligence law from the University of Cape Town and a certificate in mediation from the London School of Mediation.
After initially working as an attorney, and in-house counsel for Standard Bank, Kusevitsky joined the Cape Bar in 2003. She is currently the chairperson of the Women’s Hope Education and Training Trust (Wheat).
October 2019 Interview:
October 2019 Interview Synopsis:
The CJ commenced Ms Kusevitsky’s interview on a slow note by asking background questions relating to her qualifications. The very first question posed by the CJ was ‘what were you doing at standard bank?’ – a tricky question indeed. Ms Kusevitsky thereafter expanded on her qualifications and experiences. She then declared her love and aspirations of becoming a judge, which has resulted in her not applying for silk but instead pursuing a position on the bench.
Ms. Kusevitsky admitted she had a difficulty with “boasting” in support of her application to be recommended to the President for appointment to the bench. She however succumbed to the CJ’s request for her to “boast” after a lot of convincing in the line of questioning by the CJ.
Subsequent to Kusevitsky noting the work that she has done over the years, which work includes her chairing an NGO which she is also a founder of, the Judge President of the Western Cape Division, John Hlope, posed a few questions to her. Hlope JP’s line of questioning was interesting and mainly focused on the existed of racism in the legal fraternity at the Western Cape, and more specifically in the Western Cape Division of the High Court.
In no uncertain terms, Ms Kusevitsky confirmed that there was indeed racism in the Western Cape and she has personally experienced it. She however did not dwell on this concern, which needs to be curbed in the Western Cape’s legal fraternity. However, she later noted that she has not had the opportunity to deal with environmental law matters, although she has a master’s degree in the field, and this is due to the briefing patterns which illustrate racism and sexism in the Western Cape.
Considering the terrible pandemic of gender-based violence in our country, an important question was posed by Ms Stewart, representing the Premier of the Western Cape. It must be noted that Ms Kusevitsky answered Ms Stewart’s question in a satisfying manner. The question related to a rape case, R v S (A760/17) [2018] ZAWCHC 122 (18 September 2018), that Ms Kusevitsky presided over. Stewart enquired whether the absence of physical injury had any relevance in a rape case. Ms. Kusevitsky responded that in rape cases bruises are of no relevance because a victim of rape may not have physical injuries but is still ‘scarred for life’. Some of the candidates who appear before Kusevitsky could learn a thing or two from her judgment in this rape case.
Interestingly, Kusevitsky grew up in the Cape Flats in the Western Cape. Commissioner Singh, who is always on his toes quickly picked this up and posed a few questions to Kusevitsky. Kusevitsky noted that the high crime rates in the Cape Flats in the Western Cape is inter alia related to poverty and unemployment. She noted that the sad reality is that innocent children are caught in the crossfire. Therefore, a solution to curb continuous crime in the upcoming generations is to focus on the children and most importantly to give them hope for a better future.
Kusevitsky was ultimately nominated for appointment to the bench.
