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Judge D (Dhaya) Pillay

Capacity: Judge 
Further appointments: N/A
First appointed as a judge: 01-09-2000

Key judgments: (1) NULANDIS (PTY) LTD V MINISTER OF FINANCE AND ANOTHER 2013 (5) SA 294 (KZP) ; (2) STANDARD BANK OF SOUTH AFRICA LTD v DLAMINI 2013 (1) SA 219 (KZD) ; (3) MAKWICKANA v ETHEKWINI MUNICIPALITY AND OTHERS 2015 (3) SA 165 (KZD) 

Gender: Female
Ethnicity: Indian

Candidate Bio:

Before graduating from law school and serving her articles Judge Dhaya Pillay held down several interesting part-time jobs, including working as a florist, a locum teacher and a modern dance instructor.

Most recently she drew the ire of song-and-dance artist, and former president, Jacob Zuma, in his ill-tempered rant against the Constitutional Court on the day it heard an unopposed application by the State Capture Commission to have him jailed for contempt of an order that he appear before the inquiry.

Zuma claimed Pillay had “insulted” him in a previous judgement and moaned about the fact that she had issued a warrant of arrest against him for not appearing in court because she didn’t believe his sick-note. This, the former president had raged, was grounds for her recusal.

Working an attorney in the 1980s for noted human rights lawyer Yunus Mohamed, Pillay represented several anti-apartheid activists, including hunger striker Sandile Thusi. The firm also instructed the defence of United Democratic Front members including Frank Chikane and Terror Lekota during the Delmas Treason Trial.

Pillay continues to have a keen eye for the rights of the marginalised as a judge of the High Court in Durban. When Standard Bank went after Mbuyiseni Dlamini, demanding he continue to pay money for a motor vehicle he returned after four days because of serious defects, Pillay was sensitive to the right to equality before the law enshrined in the Constitution and the protections offered by the National Credit Act.

The bank had argued that Dlamini had not followed procedure in attempting to end the credit agreement. Pillay, noting that Dlamini, who had only completed Standard One (Grade Three) and was “functionally illiterate”, had not acted with deliberate mendacity, declared the rescission of the credit agreement to be valid. She also ordered the Standard Bank to pay the costs of the action.

In 2015 Pillay declared sections 35 and 39 of Durban’s Informal Trading Bylaw to be unconstitutional and invalid following raids by the eThekwini Municipality’s police on street traders. The metro police in Durban also impounded goods and sold off whatever was perishable if traders were unable to pay an impoundment fee. Makwickwana v eThekwini Municipality and Others, Pillay was mindful that these bylaws, which required traders with permits to be at their stalls for between three to five days a week, limited their access to the courts, and that the deprivation of their stock “impacts on their identity and dignity as people with property”.

She has in recent years adjudicated matters that reflect the decline of South Africa and the ANC. In the 2019 matter of Hannekeom v Zuma, the former tourism minister Derek Hannekom sought to interdict Jacob Zuma, a former president of the republic, from publishing substantiated allegations that he was “a known enemy agent”.

Pillay was clear that the dispute was part of a “larger conflict” internal to the ANC following Zuma’s forced resignation as president in 2018. Pillay found the litigation was “a proxy for the internal conflict within the ANC” describing it as a “conflict aggravator” and noted that “neither litigant seems inclined to engage bilaterally or within the political structures of the ANC to find a negotiated solution.” Establishing that Zuma had claimed Hannekom was a spy, Pillay found that there was (typically) no evidence by Zuma to back this claim and that the tweet was defamatory and false.

Pillay’s analysis found there were “a few material inconsistencies, misconceptions and distortions” which, due to the “public interest nature” of the case, “could be peddled as truths” if left unchecked. She found that a reasonable reader would infer the respondent’s tweet implied that the applicant was an apartheid spy. Zuma was ordered to apologise, remove the tweet and pay damages, the determination of which was referred to oral evidence.

Pillay has also had to adjudicate over matters relating to the the messier aspects of judiciary. She handed down the judgment that put an end to Judge Nkola Motata’s never-ending legal saga regarding attempts to discipline him after a drunk driving conviction in 2007. Nine years after that conviction, and a 2011 complaint lodged with the Judicial Service Commission against Motata for his behaviour during that incident, Pillay’s 2016 North Gauteng High Court judgment in Motata v Minister of Justice forced the judge to subject himself to the JSC processes.

Pillay observed that the expeditious resolution of complaints against judicial officers — something the JSC appears unable to do — was essential to the smooth running of the Judiciary: “I would be failing in my duty if I did not take this opportunity to emphasise that it is in the interests of justice that the matter of the complaint against the applicant should be dealt with and concluded without any further delay. The events that gave rise to the complaint occurred in 2007. Nine years later, the matter has not been finalised. It is in the interests of justice that this matter be brought to finality.”

An expert in labour matters, and one of the drafters of the Labour Relations Act, Pillay was appointed to the Labour Court in 2000 and the KwaZulu-Natal High Court in 2010. She was shortlisted for the vacant position at the Constitutional Court in 2015 and was unsuccessfully interviewed for a position at the Supreme Court of Appeal (SCA) in 2016.  She has previously acted at the SCA and is currently acting at the Constitutional Court for the first two terms of 2021.

An area that should come under scrutiny during her interview is that Pillay remains the director of two investment vehicles. She has indicated in her application form that she will retain these directorships which may lead to future conflicts of interest. And some strong questions during her interview.

Pillay completed her B.Proc at Unisa in 1982 and an LLM from the University of KwaZulu-Natal in 1993. She was a member of the ANC until appointed to the Bench. She obtained a doctorate in law (LLD) in April 2020  from the University of Pretoria, her thesis focused on adjudication and legal theory.

Pillay has been a visiting fellow or scholar at, amongst others, New York University, Oxford University and Harvard. Academic positions also included stints as an extraordinary professor at the University of Pretoria and an honorary research fellow at the University of KwaZulu-Natal. Her selected publications include PAJA v Labour Law (2005), Whither the Prostitution Industry (2014) and Giving Meaning to Workplace Equity: The Role of the Courts (2003).

 

April 2016 interview

Interview Synopsis: 

It was evident during Pillay’s interview that she doesn’t suffer fools lightly: A straight talker who is blunt, not so much as a knife that may need sharpening, but in a sledge-hammer kind of way.

Which may have worked against her during an interview where she locked horns with Economic Freedom Fighters leader Julius Malema over his apparent misunderstanding of the meaning in her use of the word “political” and essentially told Supreme Court of Appeal President (SCA) Lex Mpati that if he didn’t want her on the Bench, he could shove the job, quite frankly.

When Mpati pointed out that Pillay had never acted at the SCA, Pillay quickly responded that she had first been approached in 2013, when she was about start a sabbatical at Seattle University in the United States. On her return, she had “dropped” Mpati an email saying she was “back in the saddle” which had been noted – but she never heard from him again.

Mpati asked her if she thought she was “entitled” to act at the appellate court. Pillay responded: “I don’t have any sense of entitlement, which is why I am pursuing a doctorate.” She later told the commission “I am not afraid of a new challenge, and if the appellate court won’t give it to me I will find it in my academic pursuit.”

Picking up on an earlier answer to commissioner Ishmael Semenya SC that everything, including the adjudicating of cases and “allocation of resources” was “political”, Malema then attempted to quiz the judge on the apparent suggestion that “when a judge makes a judgment, he must take into account politics?”

Pillay reiterated her earlier point about everything in life being political. Malema pursued it, asking whether the “political correctness” or the “legal correctness” in a judgment was important. “It has to be legally correct, but if the politics affects the legality it must be considered,” said Pillay.

Pillay went on: “I don’t think you understand me, Mr Malema… I am not talking about party politics… No, you are not listening to me, even the law is political… even the system used to set up the law is political,” she said in an argument which, one got the distinct sense, Malema had used to test Pillay’s patience and temperament.

Her manner in court was raised again by ANC MP Thoko Didiza later in the interview, to which Pillay responded, without fuss: “We have five hours of court time and I must manage it… I am excruciatingly mindful that a judgment is a product of listening to the proof, listening to the argument and coming up with a judgment.”

Pillay was also asked questions about judicial accountability and the obstacles to access to justice amongst others.

She later clarified that while she had a long career as a antiapartheid activist, her “politics” had not affected her acting without fear or favour as a judge. Pillay had started her legal career as an attorney in the 1980s for noted human rights lawyer Yunus Mohamed, Pillay represented several anti-apartheid activists, including hunger striker Sandile Thusi. The firm also instructed the defence of United Democratic Front members including Frank Chikane and Terror Lekota during the Delmas Treason Trial.

Pillay continues to have a keen eye for the rights of the marginalised. When Standard Bank went after Mbuyiseni Dlamini, demanding he continue to pay money for a motor vehicle he returned after four days because of serious defects, Pillay was sensitive to the right to equality before the law enshrined in the Constitution and the protections offered by the National Credit Act.

The bank had argued that Dlamini had not followed procedure in attempting to end the credit agreement. Pillay, noting that Dlamini, who had only completed Standard One (Grade Three) and was “functionally illiterate”, had not acted with deliberate mendacity, declared the rescission of the credit agreement to be valid. She also ordered the Standard Bank to pay the costs of the action.

Last year, Pillay declared sections 35 and 39 of the city’s Informal Trading Bylaw to be unconstitutional and invalid following raids by the eThekwini Municipality’s police on street traders. The metro police in Durban also impounded goods and sold off whatever was perishable if traders were unable to pay an impoundment fee. Sitting in the High Court in Durban, Pillay was mindful that these bylaws, which required traders with permits to be at their stalls for between three to five days a week, limited their access to the courts, and that the deprivation of their stock “impacts on their identity and dignity as people with property”.

Pillay completed her B.Proc at Unisa in 1982 and an LLM from the University of KwaZulu-Natal in 1993.

An expert in labour matters, and one of the drafters of the Labour Relations Act, Pillay was appointed to the Labour Court in 2000 and the KwaZulu-Natal High Court in 2010. She was shortlisted for the vacant position at the Constitutional Court last year and has been a visiting academic ay New York University and Oxford University.