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Ms Nokuthula Sylvia Daniso

Saniso - Free State - Judges Matter


Current position: Senior Magistrate

Date appointed: 2017

Candidate bio:

Forty-five year-old Daniso completed her B.Proc at the University of Limpopo in 1996. Sixteen years later she completed her LLB through the University of South Africa (Unisa).

After completing her articles she worked as an attorney and set up her own practice in 1999. She acted in the magistracy for two years before being permanently appointed in 2004. In 2017 she was promoted to a senior magistrate position.

A member of the Rhema Bible Church she acted for one month in the Free State Division of the High Court in 2017 and for a further three months in 2018.

The 2018 Free State High Court matter of Jonker and Others v Lambons (Pty) Ltd and Another was a review of a taxation of costs.

The applicants’ lawyer, an admitted attorney with right of appearance “enrolled in the Gauteng Division”, was not permitted to appear, in the Free State Division by the taxing master on the grounds that only attorneys whose names were on that court’s roll were allowed to represent a party at taxation.

The taxation was consequently postponed, and the applicants sought to review the ruling. Daniso rejected various interlocutory points, and held that the practice directives relied on by the respondent did not provide “that only attorneys whose names appear on this division’s roll of attorneys may appear at the taxation.”

She held that the Right of Appearance in the Courts Act specifically allows an attorney who has been issued with a certificate of right of appearance “a right to appear in all the divisions of the high court to discharge all other functions of an advocate, including appearing before a taxing master for taxation.”

Daniso concluded that the taxing master had “misconceived the facts and the circumstances as to the practice of this court”, and that the ruling was clearly wrong.

She further held that the taxing master’s actions in “bargaining” with the attorney “that she could represent the applicants in the taxation provided she agrees to waive the right to review the rulings made at the taxation are quiet disturbing and cast doubt to her impartiality. A taxing master performs a function of a judicial nature, her independence and impartiality must be beyond reproach.” The ruling of the taxing master was set aside, and it was ordered that a copy of the judgment be forwarded to the judge president.

S v Setho and Another was a special review arising from six matters which had been heard by the same acting magistrate. The contract of the magistrate had not been renewed, and the reasons for conviction and sentence could not be obtained. The acting senior magistrate requested the high court to set aside the convictions on the grounds of numerous irregularities in the proceedings.

Daniso (with Judge Mojalefa Rampai concurring) agreed that the convictions fell to be set aside, noting inconsistencies between the guilty pleas and the offences charged, and finding that there had been a misjoinder in the proceedings.

The judgment picked up “glaring irregularities” and “slovenly” work by the magistrate who “placed a firearm in the hands” of dishonest people.

“In my view, these matters bring to the fore the importance and relevance of training and mentoring of acting magistrates. It is quite clear that the magistrate had no adequate knowledge of the court procedures and the applicable legislations. … It is therefore clear that “regular checks” alone are not sufficient as obviously by the time the checks are done the magistrate has already finalised the matter. Mentorship and continuous evaluation is essential,” Daniso found.

The convictions and sentences, as well as the orders under the Firearms Control Act, were set aside. It was further ordered that a copy of the judgment be forwarded to “the Chief Magistrates Bloemfontein” and the Director of Public Prosecutions.

October 2019 interview:

October 2019 Interview Synopsis

One thing is for sure about Nokuthula Sylvia Daniso, the senior magistrate who is about to become a judge of the high court in the Free State: she writes good judgments.

During her interview for appointment Daniso told the Judicial Service Commission several times that she writes good judgments and several commissioners made a point of agreeing with her – indeed, her judgments are well written, they said.

Daniso said that all the civil decisions she made as a magistrate had gone on appeal and that ‘sharpened’ her work. By the time she went to the high court as an acting judge she ‘could already write decisions that were good’. She said she tried to use language that would be understood by anyone – an aim that is, of course, much to be applauded.

As a magistrate she had presided in the children’s courts and in courts that dealt with domestic violence. ‘We have great laws but there is room for improvement,’ she said. The application of these laws was a particular problem. It sometimes happened that a woman concerned in a domestic violence matter did not want her abuser to be arrested. ‘She has been violated. She comes with injuries that you can see,’ but she just wants the protection order and she does not want the abuser locked up.

In answer to some questions about whether she had had enough acting experience for a permanent high court appointment she said she had acted for five months, ‘but in all the time I sat I wrote good judgments.’ She urged the JSC not to delay when it came to appointing suitable women: ‘do not impose extra time’.

Daniso recalled the difficulties she had experienced in studying law, with many people telling her it was not ‘suitable’ for a woman.

Like several other candidates during the JSC hearings, she was asked whether she was a ‘judicial activist’. In many other jurisdictions this would have led to a debate about ‘activism’ versus ‘restraint’, with executive-minded commissioners favouring appointment of those judges who described themselves as favouring restraint.

But the debate has a different tone in South Africa, and former judges of the Constitutional Court have said that judicial officers had to be ‘activists for justice’. After declaring herself to be a ‘judicial activist’, Daniso was asked about the limits of activism. To the laughter of the commission, she said there were risks: if you ‘get out of your lane’ and into the ‘lane’ of the other arms of government, then you would lose your job, she said.

Asked what it would mean if she were appointed, she said ‘If I am recommended you will be telling African women and African girls that your background does not limit you.’

She was impartial and diligent, she said. ‘I have integrity and propriety. I never cut corners. I intentionally write well. But I would not be happy (if I were appointed) just for being black and female. That is not enough.’ But she would be happy if the commission also said she did her work well.

Senior Magistrate Sylvia Daniso was recommended for appointment.