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 defense 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 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 2021 Interview:
April 2021 Interview Synopsis:
Perhaps inspired — or irritated — by the constant birdsong at the North West hideaway from where he is remotely chairing the Judicial Service Commission (JSC) sitting in Johannesburg, Chief Justice Mogoeng Mogoeng didn’t so much throw the cat among the pigeons during this interview as release a sabre-toothed tiger to assist the vultures currently looking to feed off a beleaguered judiciary gasping for its life.
The judiciary has come under a campaign of unsubstantiated attacks questioning its independence in recent months, especially by a political elite including a former president (Jacob Zuma) and a political party leader who sits on the JSC (the Economic Freedom Fighters’ Julius Malema).
This has deepened a reputational crisis within the judiciary which has also seen the Western Cape Division of the High Court on the brink of implosion and a Judicial Conduct Committee making adverse findings against the chief justice himself because of comments he made regarding the Palestine-Israel conflict and South Africa’s policy towards finding a solution to it.
It was not so much that Mogoeng raised a concern about the friendship between KwaZulu-Natal High Court Judge Dhayanithie Pillay and current public enterprises minister Pravin Gordhan towards the end of the former’s interview for a position at the Constitutional Court.
Rather, it was the manner in which the chief justice framed remembering a meeting that Gordhan had sought with him in 2016 which lent even more ammunition to those firing broadsides at the judiciary — and appeared to suggest that the most important aspect of the meeting was a discussion on Pillay’s promotion up the judicial ladder. This was contrary to a statement released by Gordhan the following day which confirmed he had sought to meet with Mogoeng to discuss pressing matters including cost-cutting within the judiciary, extending the term of the tax ombudsman and discussions regarding state spending on former president Jacob Zuma’s private residence in Nkandla — the Constitutional Court had a few week previously handed down a judgement, penned by Mogoeng, which ordered Zuma to pay back a large part of the almost R250-million of state funds which had been spent upgrading Zuma’s rural homestead.
After allowing Malema leeway to ask Pillay several more questions than the two that agreed commission protocol and time constraints allowed for, Mogoeng made the following comment:
“It was after Mr Malema asked you in a more pointed way, again whether you were friends [with Gordhan] that you admitted friendship. Let me tell you where I am going to: During the last interviews for the Constitutional Court [sic, this was actually during 2016 interviews for positions at the Supreme Court of Appeal] that you attended and while the JSC programme was running, my office got a call from the office of Minister Pravin Gordhan seeking an appointment with me and I was a bit surprised. We had never met except at a meeting of the heads of the arms of the state where we had to brief us as minister of finance regarding the true state of the fiscus at the time so that we could embark on the cost-cutting measures that you might be aware we tried to introduce to the courts. He came. I took a break from the JSC proceedings and I really don’t know what the purpose of the meeting was, I don’t have a clear recollection, I think it was something about the tax ombuds, but what stuck to my mind and left me puzzled was the following: He asked me ‘How did my friend Dhaya Pillay get on?’… And we had just caused the spokesperson to announce the results and I told him, because it was public knowledge, that you did not make it. And that thing has stayed with me and it got renewed… as Honourable Malema engaged you… Why did the honourable minister make an effort to meet me? We are not friends. I don’t know him from anywhere except television. Why did he make a trip to seek an audience with me just to ask me: How did my friend, Dhaya Pillay perform? So it is in that context that the concern regarding your relationship with the honourable Mr Gordhan arises and my concern regarding your initial response which didn’t seek to admit or acknowledge friendship arises. Now I put to you what others have put to you so that you can deal with it and satisfy [any doubters] it doesn’t have to be a long answer. Is it potentially comprising to judicial independence and impartiality for a minister or a senior politician, to be keenly interested in the upward mobility, or to look like he or she is keenly interested in the upward mobility of a judge?… Just in your own words, just deal with it as briefly as you can without compromising the quality of your answer.”
Pillay had already admitted that she was a long-time friend with Gordhan since they were both anti-apartheid activists in Durban from the seventies onwards. She had qualified that their “association had drifted over the years” because they were both aware of the “boundaries” that needed to be maintained between politicians and sitting judges.
Responding to the Chief Justice, Pillay said she was not aware of the meeting between him and the minister, to which Mogoeng said: “I believe you”.
“From what you tell me, the decision had already been made?” Pillay had asked Mogoeng, to which he responded in the affirmative while agreeing he had been asked nothing more than how she had fared. Mogoeng also confirmed that Gordhan had not said “anything like ‘you should appoint her’”.
Judge Pillay said it must have come up in casual conversation and confirmed again that the “boundaries [between her and Gordhan] have been strictly observed”.
“I can only say again, that he asked you in passing relating to other business and he was disclosing to you that he is my friend, which is no secret,” Pillay reasserted.
The exchange came towards the end of an almost three hour interview during which Pillay was interrogated at length about the unsubstantiated rumours circulating around judges. It certainly dominated headlines the following day and set off decibel-shattering noise on social media with many commentators — both real and bots — used the Chief Justice’s comments as further evidence of a corrupted judiciary.
At the beginning of her interview Pillay highlighted the “three challenges facing courts internationally and in South Africa. These included the “unregulated area” around social media and the legislative lacunas that exist around technologies’ intrusion into democratic rights including personal privacy and protection of information, intellectual property, and the attacks on dignity and security.
“We are, legislatively, unprepared for [the fourth industrial revolution], I think,” she said.
She also noted that rising unemployment as a consequence of the Covid-19 pandemic would place pressure on the environment and society and put the rule of law in Constitutional democracies on the back foot.
Pillay also noted that Constitutional crises remained a danger in the face of increasing numbers of “public office-bearers and people in general” who were refusing to abide by the rule of law or be bound by the Constitution and court orders.
One of those people who have demonstrated that they believe themselves to be above the law is Zuma. He had earlier this year attacked Pillay’s inclusion in the Constitutional Court panel which heard the application by the Zondo Commission into State Capture to have the former president declared in contempt of (the apex) court for his refusal to appear before the commission despite its order.
Zuma had pointed to the adverse findings Pillay had made against him in a defamation case brought by another leader in the ruling ANC, Derek Hanekom, and her issuing (and staying) of a warrant against the delinquent former president for non-appearance in court in a criminal matter as evidence of the judge’s bias against him in a paranoid press release earlier this year.
Zuma had alleged Hanekom was a “known enemy agent” in a tweet. Hanekom responded by approaching the courts. Pillay said she was aware that the Hanekom matter was more than just a defamation case and that she had included a quote from former ANC president Oliver Tambo made at the 1969 Morogoro Conference of the then liberation movement because “I thought if these litigants couldn’t appreciate my own judgment, then maybe they would appreciate their own leaders.”
This later led to Malema claiming that judgements had never previously quoted from political party texts, which proved that Pillay was an ANC activist hell-bent on “factional” politics in aid of Gordhan.
The encroachment of populist gutter politics into the judiciary dominated Pillay’s interview and she was asked by Mvuso Notyesi (representing the attorneys’ profession) how one would end the flurry of unsubstantiated allegations made against judges, and specifically, that “you are one of the pre-paid judges?”
Pillay said the best way to do this was for people with evidence to come forward and present these at a “forum” set up to investigate these allegations — otherwise there was no reason to countenance the noise and hot air blowing around the judiciary. Despite invitations to do so over the past two years no-one, including Zuma and Malema, have come forward with actual evidence of judicial corruption.
Mogoeng was chairing the interview with a very loose grip so it was left to justice minister Ronald Lamola and Dunstan Mlambo, the judge president of the Gauteng High Court, to bring some sanity to proceedings with questions that rose above the rabid alpha-male posturing that otherwise dominated.
The JSC, especially under Mogoeng, has previously demonstrated apathy, inertia and an utter loss of focus on the job at hand. As male commissioners including Advocate Dali Mpofu SC, ANC legislator Jomo Nyambi and the ANC’s Bulelani Magwanishe, the chairperson of the parliamentary committee on justice gathered in the interview room as a pack around Malema to deliver back-slaps and chortle over his performance during the interview, it confirmed that this was certainly one of its very lowest moments. One where the Chief Justice did little to protect the candidate judge from Malema’s ad hominem attacks which included accusing her of being a partisan player in the factional politics of the ANC. In failing to do so, Mogoeng failed to protect the judiciary as a whole, too.
Pillay was not recommended for appointment.
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 an anti-apartheid 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 at New York University and Oxford University.
