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Judge B (Bashier) Vally

Capacity: Judge
Further appointments: N/A
First appointed as a judge: 22-05-2012
Key judgments: (1) CAXTON AND CTP PUBLISHERS AND PRINTERS LIMITED AND OTHERS V MULTICHOICE PROPRIETARY LIMITED AND OTHERS [2016] ZACAC3 ; (2) DEMOCRATIC ALLIANCE V PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA [2017] 3 ALL SA 124 (GP)
Gender: Male
Ethnicity: Indian

Candidate bio:
Judge Bashier Vally has a lugubrious demeanour, like a cartoon character whose pessimism ensures a dark cloud constantly hanging over his head.

This has previously created an impression at the Judicial Service Commission that he can be a bit of a “moaner” — most especially when Commissioner Mathole Motshekga (an ANC MP) wondered why he was approaching his 2016 interview to be appointed to the Competition Appeal Court (CAC) as an “opportunity for lamenting”.

Vally, a judge of the South Gauteng High Court since 2012, was unsuccessful then, but was appointed to the CAC a year later.

He grew up in the Johannesburg township of Lenasia and obtained a B Comm degree in industrial psychology from Wits University. Following university Vally became involved in the Commercial Catering and Allied Workers Union of South Africa as an “organiser, negotiator and educator”, which deepened his passion for labour law. This led to him completing an LLB from Wits in 1995.

He joined the Johannesburg Bar a year later with his practise focused on labour law and constitutional law.

In 2017 Vally formed part of a full South Gauteng High Court Bench which certified a silicosis class action, opening a breach for a large group of mineworkers to sue the gold mining industry for allegedly not protecting them, for decades, from the effects of silica dust, which causes silicosis and increases the risk of tuberculosis. The claims for mineworkers, estimated to number as high as 500 000, could run into billions of Rands.

The judgment jointly written by Vally and South Gauteng Deputy Judge President Phineas Mojapelo, noted that; “the industry left in its trail tens of thousands, if not hundreds of thousands, of current and former underground mine workers who suffered from debilitating and incurable silicosis and pulmonary tuberculosis” while reaping huge profits.

The judges wrote that; “With remarkable consistency, [the mineworkers’] evidence reveals that the mining companies stripped them of their dignity, and concomitantly compromised their health and safety, with such intensity and ferocity that they were effectively dehumanised.”

In 2015, at the height of the #FeesMustFall movement, Vally granted an interim interdict in favour of Wits University which was seeking to halt disruptions on its campus, with the caveat that this did not impede freedom of speech at the university.

While several of the cases Vally has adjudicated have dealt with labour and union matters, as well as issues of protest and free speech, he has also sat on some that involve the tawdrier side of South African celebrity life.

When racist and musician Steve Hofmeyer had proved tardy in signing his divorce agreement with Natasha Sutherland, and subsequently backed out of maintenance payments of R17 500 per month, Vally, then an acting judge at the South Gauteng High Court, ordered him to step up soonest. He found that Hofmeyer must accept “full responsibility” for the delays, sign up or face the court’s bailiff, and ordered costs against him.

In 2017 Vally drew the ire of supporters of President Jacob Zuma when he ordered the country’s former Number One provide the record and reasons that influenced his decision to conduct a midnight reshuffle which led to the sacking of finance minister Pravin Gordhan.

Vally ruled that Zuma’s powers were not unfettered and that he was legally required to exercise his power rationally. This led to disturbingly vitriolic attacks on Bashier by Zuma supporters including the ANC Youth League in eThekwini which branded him an opposition party collaborator and called on the JSC to “fire” him.

Its secretary, Thinta Cibane, demonstrated a grasp of the Constitution which, could be kindly described as idiotic, when he observed, in a statement: “Any order by a court for the president to justify his decision would amount to a violation of the Constitution and is a spit in the face of the people.”

“In a constitutional democracy there can never be a court order forcing an elected president to account on matters vested in his office‚ least of all to a party that was rejected by the majority of our people in the polls. Such a judgment is misconduct‚” he continued.

These comments would have probably remained the crudest and most nonsensical criticism of the judiciary had it not been for the dangerous remarks by Zuma and EFF leader Julius Malema (who is a member of the JSC) in February 2021.

April 2021 Interview: 

April 2021 Interview Synopsis: 

The Judicial Service Commission (JSC) did give the impression that Gauteng High Court Judge Bashier Vally’s nomination for appointment by President Cyril Ramaphosa may have had less to do with who he was, but rather, much more to do with who the candidates not recommended were.

The Constitution obliges the JSC to recommend three more candidates than there are vacancies at the country’s highest court and the commission had resolved to send five names for the two vacancies to Ramaphosa.

Early on in his interview Vally dealt with a complaint from the General Council of the Bar which claimed that he sometimes demonstrated “an unwillingness to deal with the substance of matters” leading to various postponements until the case was heard by another judge.

Vally said he was “very disappointed” by the adverse comments and that without context or examples it was difficult for him to respond to them. He said his judge president had never raised his purposefully postponing cases so as to avoid hearing them and suggested there may be some ill feeling towards him by advocates because he was “tough in court” and that he ran an “intellectually challenging” ship.

When asked by Justice Minister Ronald Lamola whether the case in which he had denied former Zimbabwean first lady Grace Mugabe diplomatic immunity had been a “polycentric issue” to which he had not given due regard to the separation of powers, Vally said he didn’t think it was and “I don’t believe I was stepping on the shoes of the executive”.

Commissioner Narend Singh noted that Vally had never acted at the Constitutional Court. Vally considered this “fair comment”, stating that while he had not been given the opportunity to act at either the Supreme Court of Appeal or the Constitutional Court, which he found “unfortunate”, this was not of his choosing and he was mindful of his age and the fact that if he waited for an invitation to act, which never come, he could miss out on an opportunity for permanent appointment.

On dissenting judgments, Vally said these were “important” because the judge’s oath of office demanded that they “carry out their duties without fear, favour or prejudice and that they apply themselves” accordingly so as to “celebrate different ideas”.

“Dissenting is absolutely essential to the development of our law… We must sit in conscience,” he said.

Section 174(2) of the Constitution states that “the need for the judiciary to broadly reflect the racial and gender composition of South Africa must be considered when judicial officers are appointed.”

On the observation that the Constitutional Court had no white judges or ones of Indian descent and that there was a “vulgarisation” of Section 174(2) by commentators who suggested that appointments should address this, Vally said that may be unnecessary and that the section should not be read “in isolation”.

“We don’t have to do it because we have to,” he said, pointing out that there had been no judge of Indian descent since Justice Zac Yacoob’s retirement in 2013.

“To me that didn’t matter and the court was never impoverished,” said Vally who did, however, warn against making the assumption that “one [race] group has more knowledge” than any other.

April 2018 Interview:

April 2018 Interview Synopsis:

If the emotionally charged exchanges between South Gauteng High Court Judge Bashier Vally and Competition Appeal Court (CAC) Judge President Dennis Davis are an indication of their apparently normal relationship — which is how the former described it — then the acrimonious divorce film, Kramer v Kramer, needs to be rethought of as a flick about happy, functional families.

When it was Davis’ turn to question Vally the interview soon descended into an unedifying series of bickering, interruptions, allusions to some previous disagreements over cases they may have heard together, and shout downs. At one point Vally accused Davis of acting immaturely in the interview: “You sometimes distract me with your facial expressions,” he said when trying to answer a question.

Davis asked Vally questions about the legal framework that governs the court, giving the impression of intending to show him up for a possible lack of knowledge. At times, Vally did appear to flail around for answers about relevant legislation and proposed amendments to the Competition Act, which is set to go before parliament.

Noting that the “only time we have minority judgments” at the court was when Vally was adjudicating there, Davis then quizzed him on the necessity for collegiality at the court. Vally responded by saying that he had always argued his points and “put forward my arguments and judgments for the world to see” on points of law, and not to appear personally contrarian.

“Collegiality cannot translate into concurrence,” he chided Davis. Vally then accused Davis of not being ready to accept a “diversity of ideas” while preferring “tin soldiers” all drumming to the same beat, the kind of hegemony which would “make everybody into a Nazi” at his court. Davis shot back that no-one would consider the various Supreme Court of Appeal and Constitutional Court judges who had worked at the CAC of being mindless Nazis.

Vally then flipped the tables on Davis, asking him whether the questions about collegiality were asked so as to undermine his candidacy. “If that was done to jeopardise my position then there is a serious problem,” he thundered.

When Vally described the proposed amendments to the Competition Act as recognising, and aiming to address, a “lacuna” in the manner in which oversight of corporate activity could be administered, Davis pressed him on this.

Vally said the amendments recognised the racialised concentration of economic activity and wealth in South Africa and sought to address these.

In spite of their fiery exchanges Vally told the commission that he hoped “we don’t suggest we have a turbulent relationship” because the “contrary” was apparently true.

The debate continued unabated until other commissioners finally got a chance to ask Vally questions which dealt more closely with the technical aspects of this area of law, the influence that economic experts had in these courts, his approach to cases relating to predatory pricing and how SA competition legislation compared to other countries.

Vally was recommended for appointment by the JSC which suggests that the Competition Appeal Court may become as interesting to watch as parliament was during former president Jacob Zuma’s corrupted tenure.

October 2016 Interview:

October 2016 Interview synopsis: 

Judge Bashier Vally has a lugubrious demeanour, like a cartoon character whose pessimism ensures a dark cloud constantly hanging over his head.

So when the South Gauteng high court judge bemoaned his having been called to serve only one acting stint at the Competition Appeal Court his manner — and the repetition of his woe-begone experience — may have spurred on the members of the Judicial Service Commission to take him to task for using the interview forum to “air grievances”.

Commissioner Mathole Motshekga wondered why he was approaching the interview as an “opportunity for lamenting” — a sense that appeared to  shared by several of the commissioners. This despite Vally going to great lengths to state that he was “not complaining”.

The appointment of acting judges has long been a murky process with the criteria used to make these appointments unclear and still informal.

A point that Vally raised during his interview, pointing to the fact that “one never knows how these decisions are made” and stressing that, especially for specialist legal fields and courts, “if you don’t give people an opportunity, you don’t develop their skills”.

Advocate Lindi Nkosi-Thomas asked Vally to suggest ways to enhance the process of appointing judges and he stated that “improv[ing] transparency” was essential. Vally, who was not appointed to any of the two vacancies at the court had the longest interview at 29 minutes.