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Judge A (Ashton) Schippers

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  • Judge A (Ashton) Schippers

Capacity: Judge
First appointed as judge: 2013 (Western Cape High Court)
Further appointments: 2018 (Supreme Court of Appeal)
Gender: Male
Ethnicity: Coloured
Date of Birth: June 1958
Qualifications: B Proc (1982); LLB (1986); (Unisa); LLM (1988) (UCT); LLM (1991) (Harvard University, USA); PG.Dip (Theol) (Cum Laude) (2019)(Stellenbosch)

Key judgments:

 

Candidate Biography (updated April 2024):

Judge Ashton Schippers is a judge of the Supreme Court of Appeal.

Probably the fastest judge on two wheels in South Africa, Judge Ashton Schippers is an avid cyclist having completed several long distance endurance cyclosportives.

‘Skippy’, as Schippers is affectionately known, has had an illustrious legal career thus far. He has worked as an advocate, an attorney, Magistrate, Prosecutor, Judge of the High Court, Judge of Appeal, and most recently an acting Justice of the Constitutional Court.

In 2023, Judge Schippers handed down the case which decided whether the gratuitous display of the old South African flag constitutes hate speech, unfair discrimination and harassment under PEPUDA(the Equality Act) in the case of Afriforum NPC v Nelson Mandela Foundation.

The basis of this case was the use of the old South African flag in nationwide demonstrations protesting against the murder of farmers in which Afriforum played a leading role. This led to the first respondent laying a complaint against Afriforum.

Schippers set out that the concept of ‘communicate’ in s10(1) of the Equality Act which prohibits hate speech, extends to the expression of ideas through conduct. He held that “There is no question that the gratuitous display of the old flag constitutes the publication, propagation, advocacy, or communication of a message, within the meaning of s10(1) of the Equality Act.” Judge Schippers set out that this act demonstrated a clear intention to be hurtful, harmful, and promote and propogate hatred on the ground of race.

Schippers went on to explain that the old flag is a reminder of the anguish millions suffered under the apartheid regime in South Africa which was both racist and repressive.

The appeal was dismissed and Schippers ordered that any gratuitous display of the old flag will amount to hate speech, unfair discrimination and harassment in terms of the Equality Act.

In another Supreme Court of Appeal case, Gongqose v Minister of Agriculture, Forestry and Others, customary fishing rights of indigenous communities were recognised as a defence in a criminal case.

This case concerned the Dwesa-Cwebe Marine Protected Area, where the appellants were fishing in line with their customary practices. However, this act contravened the Marine Living Resources Act and they were convicted and sentenced.

In this case Judge Schippers set out the important position that Customary Law holds within the holds in the South African legak system and recognised that it is an independent source of norms which give rise to rights, including access and use rights.

With the validity of custom no longer being determined by common law, the nature and content of the appellants rights of access and use of marine resources was determined with reference to customary law.

Schippers recognised customary fishing rights of indigenous communities as a defence in a criminal case and set aside the conviction and sentences of the appellants.

Schippers completed his B.Proc and LLB at the University of South Africa. He went on to complete masters in law at the University of Cape Town (company law and international law) and and LLM at Harvard University (Constitutional law, human rights law, international law, and negotiation and conflict management) on a Fulbright Scholarship.

He completed his articles of clerkship in 1986, and worked briefly as a prosecutor and magistrate before joining the attorney’s profession in 1989.

Schippers joined the Bar in 1993, rising to silk (senior counsel) status in 2004.

Following intermittent stints as an acting judge between 1998 and 2011, he was permanently appointed as a judge on the Western Cape High Court bench in November 2013.

Speaking during that interview about untransformed briefing patterns skewed towards white male lawyers, Schippers told the commission how, despite being one of the most high-profile and well-regarded black silks at the Cape Bar, he was almost entirely dependent on briefs from the state attorney because private firms inevitably turned to white counsel.

At 66, he only has 4 years remaining until he has to take compulsory retirement. This significantly affects his chances of being permanently appointed to the Constitutional Court.

 

April 2024 Interview: 

 

 

April 2018 Interview:

April 2018 Interview Synopsis:

Sometimes questions at the Judicial Service Commission (JSC) meant to encourage candidates to delve into their background and the challenges they surmounted to get to the Bench, are handled with little subtlety.

So there was a surprise when Supreme Court of Appeal (SCA) president Mandisa Maya, who is usually elegant in her lines of questioning, noted that Western Cape High Court judge Ashton Schippers came from the Cape Flats and wondered aloud how he hadn’t ended up in a gang.

Schippers appeared unperturbed by the crass clichés and regaled the commission with stories about how he grew up on the tough streets of Bridgetown in a two-room home overcrowded by several siblings and, in addition, cousins who had nowhere else to live.

He told the commission he would have ended up in a life of violence, unlawfulness and prison-time before an early death, like his friend “John”, a talented gymnast and football player. But did not because of his family and religion.

Schippers attributed his rise, which also included several bursaries, to the steadying influence of his parents and the “grace of God”. He told the commission that his mother had taught him three things: to recognise God’s power, to pray and that “your character and not your circumstances define you”.

KwaZulu-Natal Judge President Achmat Jappie asked Schippers whether he would take his background with him to the appellate court if appointed. And if so, where his adjudicating would sit on the scale running from the “black letter” of the law approach of the SCA and the more “equity” focused approach of the Constitutional Court.

Schippers said judges were duty-bound to uphold the Constitution and if he did err, “ I err on the side of the Constitution… [because it] colours, shapes and infuses your judgments… If your lodestar is the Constitution then I don’t think you can go wrong,” said Schippers.

Schippers said that while he found acting at the appellate court a “very hard job” where the pressure was immense and demanded one “got it right”, he had enjoyed his time there.

According to Schippers the one essential attribute for an SCA judge was, that they remained “teachable”: “The day you have the attitude that ‘I have arrived’, you must hang up your robes,” he said.

He said it was important for judges to “fiercely” maintain their independence, to “apply the Constitution” and to “treat litigants and practitioners civilly” while retaining their “humility and teachability”.

Quizzed about a ruling that the public protector’s findings and recommendations were not binding — overturned by the SCA — Schippers reiterated that his starting point was that the public protector’s office had been modelled on that of the ombudsman and that he had provided the caveat in his judgment that rational reasons were still required as to why the public protector’s recommendations were not to be followed.

He said he accepted the appeal court’s judgment which showed that “the system works”.

On transformation Schippers said his “policy was to always empower black women” during his eleven years as a senior counsel. He told the commission that, aside from one instance when a white female junior was “foisted” upon him he had always practised with black male and female juniors.

Advocate Thabani Masuku commended Schippers for his mentoring and development work, saying that they had worked together and “as a black junior in Cape Town I found a brother in you.”

Schippers was successfully appointed to the SCA.