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Judge E D (Elizabeth) Baartman

Candidate Bio | Updated May 2024

Judge Elizabeth Dorothy Baartman is a judge of the Western Cape High Court.

A judge on the Western Cape Bench since 2009, Baartman has heard cases including the urgent application brought by Primedia and other media organisations, to ensure an uninterrupted television feed from parliament – this followed the cutting of the parliamentary feed during the 2015 State of the Nation address when MPs were forcibly kicked out of the house for disrupting former President Zuma’s speech with chants of “pay back the money” .

Born in the Hangberg area of Hout Bay, Cape Town, Baartman attended Grassy Park High School and obtained her B.Iuris (1986) and LLB (1994) degrees from the University of the Western Cape.

Baartman immediately started work as a prosecutor immediately after her junior law degree in 1986. She would later serve as a district magistrate, trying both civil and criminal cases, from 1991 to 1998, while simultaneously studying for her law degree.

From 2001 Baartman served as directly of the People’s Family Law Centre, an NGO dedicated to assisting and vulnerable people on family-law related issues.

For five years from 2003 – 2008 she joined the National Prosecuting Authority as a senior state advocate and later Deputy Director of Public Prosecutions, trying mostly family-related crimes.

Baartman was a member of the erstwhile Magistrates Association of SA (now Judicial Officers of Association of SA, 1991 – 2001), and a board member of the Law, Race and Gender Unit at UCT. She is currently a member of the SA Chapter of the International Association of Women Judges (SAC-IAWJ).

In 2007, Baartman was selected to participate in the prestigious Aspirant Women Judges national training programme, which sought to diversify the bench. After graduating from the programme, she acted as judge of the Western Cape High Court from October 2009 to August 2009.

During her 2009 Judicial Service Commission interview, she spoke of her “lengthy” struggle with the National Prosecuting Authority to be allowed to act as a judge.

The NPA, according to Baartman, believed her acting stints had constituted a conflict of interest and had asked her to repay the money earned as a prosecutor over that period. This eventually forced her resigned as a prosecutor to pursue a career in the judiciary: “Once I applied my mind to it, I could not see the point [of continuing] and I resigned [from the NPA],” she said.

Since her 2009 appointment as a judge Baartman has written several important judgments.

When American e-commerce conglomerate Amazon decided to build its African headquarters in Cape Town, it sought a location with the most picture-perfect views of Table Mountain. That location was on the banks of the Liesbeeck River in Observatory. Soon after breaking ground, a group describing themselves as ‘the First Nation people’ resisted this move, arguing that Amazon was building on their ancestral land. They tried all methods to stop the building of Amazon’s corporate headquarters, and this eventually landed in court. The First Nations groups initially won an interdict to stop the development. However, the property developers, Liesbeek Leisure Properties Trust, took this interdict on appeal before a three-judge bench with Baartman presiding.

In a 32-page judgment, Khoin v Jenkins, Baartman (with Slingers and Lekhuleni concurring) notes that the site of the new Amazon headquarters has a rich heritage, having been occupied by South Africa’s indigenous people for gazing their livestock and for various other social, ecological and sacred functions. In addition, she noted that the site is also important as the place where indigenous people first encountered and resisted colonialism. “Sadly, the importance of the site and its valuable heritage significance have largely been ignored as the Liesbeeck River has been degraded and indefensibly polluted,” she continued.

Later in the judgment she explained that the authorities had granted all permissions to the property developer to build on the site, including preserving some of its heritage. But this was stopped by the First Nations groups who sought an interdict to stop the development, which they said would harm the site.

After dealing with some preliminary points, including disputes over who is the true representative of the First Nations groups, Baartman ruled that the First Nations groups could not prove a cultural and heritage right that entitled them to interdicting the development. In any event, Baartman found, the balance of convenience favours the development going ahead: “[T]he promotion of the site’s heritage value and the employment opportunities for the unemployed in the province…far outweigh the unarticulated harm in the [First Nations people’s] case”. She therefore set aside the interdict and gave the greenlight for construction to go ahead.

When Public Protector Busi Mkhwebane faced a parliamentary impeachment inquiry over allegations of misconduct and incompetence, she sought to interdict the inquiry from going ahead. She listed 12 grounds of objection, including a violations of her constitutional rights by denying her legal representation, and inclusion of a judge in the inquiry, in violation of the separation of powers principle. A 3-judge panel heard the urgent application and dismissed all but the latter two grounds. Baartman, writing the judgment for the court, held that the denial of legal representation was in violation of Mkhwebane’s constitutional rights. In addition, the inclusion of a judge in the preliminary stages of the inquiry also violate the separation of powers principle.

The latter finding by Baartman attracted some criticism from anonymous legal commentator Professor Balthazer. Writing in Daily Maverick, they say “On the basis of this very debatable reasoning, the court, while correctly dismissing the laundry list of objections to the National Assembly process, decided to rewrite two key provisions of the rules of the National Assembly…This judgment shows that Stalingrad tactics can work and further that a principle of some deference to Parliament needs a better jurisprudence, for after all, that too is part of the doctrine of separation of powers.”

On appeal to the Constitutional Court, Baartman’s judgment on the legal representation point was confirmed but the point on the inclusion of the judge was overturned.

Baartman held several stint as an acting judge of the Supreme Court of Appeal: from May 2015 to April 2016 and, after a long hiatus, from December 2023 to May 2024.

When several people started building houses without authorisation on government owned land near the East London Airport, the National Department of Public Works rushed to court to interdict them from occupying the land (or threatening to do so). On the strength of this order, the NDPW started demolishing some of these houses. The occupiers of these houses went back to court to declare the NDPW’s demolition as unlawful as this was not authorised by the initial order. The NDPW sought and was granted leave to appeal to the SCA, but it did not take any steps to move the appeal forward, including filing the appeal record for 18 months. This caused the appeal to lapse.

The NDPW therefore came back to the SCA seeking reinstatement of the appeal. Writing for a unanimous court in NDPW v Fani, Baartman found that the NDPW did not give a full explanation for why it sat for 18 months doing nothing, including filing the appeal record. In addition, the prospects of NDPW succeeding on appeal were remote. For these reasons, Baartman dismissed the appeal.

No doubt, Baartman’s 15 years of experience as a judge, coupled with nearly a decade of prior experience as a magistrate stand her in good stead. However, she is likely to face some tough questions from the JSC on whether this experience has sufficiently prepared her for the rigours of a Supreme Court of Appeal that desperately needs experienced judges.

The May 2024 interview will be her third attempt at getting a position at the appellate court — she was unsuccessful in 2016 and 2018.

During her 2016 interview, now retired SCA president Lex Mpati said he had canvassed colleagues in the division about her readiness for permanent appointment and the general consensus had been that she “needed more honing with more acting stints”. In the several years since, she has presided over several full bench hearings and has written judgments but has had only one more acting stint at the SCA. Even that has only last a few months. There is therefore a serious question on whether the JSC will be persuaded that she is now ready.

In addition, Baartman only has six years left before retirement. While this might be irrelevant in other circumstances, the JSC will likely weigh this as a factor for her non-appointment should the JSC find that she is not yet ready. We wait with bated breath whether this will be the year that she is successful.

April 2018 Interview:

SCA Interview Synopsis | April 2018

Concerns about Judge Baartman’s lack of experience in general, and her limited exposure to adjudicating constitutional matters in particular, proved one of the sticking points for the Judicial Service Commission (JSC) during her interview.

Supreme Court of Appeal (SCA) President Mandisa Maya first raised the issue with Baartman with other commissioners following up. Her response remained consistent: that she was ready during her first (unsuccessful) interview for a position at the appellate court in 2016 and she still was. Baartman argued that her exposure to a variety of legal cases in the high court stood her in good stead to make the transition to the appellate court.

Pointing out that only three of her judgments were successfully appealed against since she joined the high court in 2008 Baartman said “that must, with respect, show a consistency to get it right the first time”.

Chief Justice Mogoeng Mogoeng delved into the “resistance” that Baartman had faced when asked to act at the SCA and her responses suggested that the division was still wracked by a hierarchical haughtiness.

Baartman said “once you enter the SCA, some people forget you are a judge… You don’t come from the street, you are a professional…”

Mogoeng followed up asking how this attitude of “this is our space” and that some acting judges were “intruders of sorts” manifested in the appellate court?

Baartman said the antipathy included “the way people deal with you as a colleague” and the manner in which judgments were allocated to acting judges as a scribe. She said that if acting judges were “considered worthy” allocation was “normal” but if not “people are then later surprised that you can write”.

Acknowledging some of the attitudes and practises Baartman mentioned existed in her court, SCA President Mandisa Maya, said these were “things I am fighting to change”. She then asked Baartman for some practical steps that she could take.

Baartman said everything started with the court roll. She said it was “startling” when she found that some senior judges had nothing to write for an entire term, which “cannot be right”. She added that ensuring that every judge received a variety of cases would also help confidence levels for inexperienced and acting judges while also developing the breadth of their experience: “I saw people’s confidence levels dropping when the roll came out,” Baartman commented on her previous acting stint at the appellate court.

KwaZulu-Natal Judge President Achmat Jappie, who sits on the commission representing the heads of courts, asked Baartman her views on the value of a dissenting judgment.

Baartman said that if the dissent was an issue of law or principle, “then a dissent is very important — it helps develop the law”.

At the end of her interview Mogoeng enquired as to what convinced former Constitutional Court justice Kate O’Regan to recommend Baartman for nomination. She said O’Regan and the Centre for Law and Society at the University of Cape Town must have been “moved by my involvement”, “have read my judgments” more widely than those available and “know my conduct in court”.

 

April 2016 Interview:

SCA Interview Synopsis | April 2016

In the initial part of her interview Baartman was quizzed on her experience of sitting on a full Bench at the Supreme Court of Appeal and writing judgments with her colleagues — a sometimes daunting task at a notoriously no-nonsense superior court —- including dissenting judgments and how she handled having legal opinions different from her more senior colleagues.

She had come prepared, including bringing along a “photo of the weapon, in colour” that was used in a murder case in which she had dissented from the majority to apparently prove her point – eliciting a giggle or two from commissioners.

Responding to SCA President Lex Mpati that he had canvassed colleagues in the division who had suggested that Baartman “needed more honing with more acting stints”, the judge begged to differ:

“I absolutely don’t agree with you, if you look at my experience in the courts, not just at the SCA all the way back [to her experience as a prosecutor, magistrate and a judge in the lower courts] I have written well-reasoned judgments,” said Baartman, who later underlined her impression that the appellate court “gets its work from the lower courts” where she had spent “all my professional life”.

Mike Hellens SC invited Baartman to respond to the perception that the SCA “is not only unduly uncomfortable, but blunt, and that counsel doesn’t have an opportunity to fully develop arguments”.

“It differs from hearing to hearing. There are times where the issues are very narrow and the presider gives direction that these are the issues,” said Baartman.

She was also asked about her contribution to advancing transformation within the legal fraternity and whether she believed in judicial activism. Baartman cited examples of juniors she had assisted before telling the commission that judicial activism was permissible “as long as we stay within the bounds of the law. The Constitution makes provision for us to do that and where necessary I have done that.”

A judge on the Western Cape Bench since 2009, Baartman has heard cases including the urgent application brought by Primedia and other media organisations, to ensure an uninterrupted television feed from parliament – this followed the cutting of the parliamentary feed during the 2015 State of the Nation address when MPs were forcibly kicked out of the house.

While acting at the Supreme Court of Appeal, Baartman has sat on a full bench to hear matters involving South Africa’s celebrity set.

These have included the National Prosecuting Authority’s appeal against Paralympian murderer Oscar Pistorius’ initial culpable homicide conviction and AbaThembu King Buyelekhaya Dalindyebo’s application to set aside the culpable homicide verdict against him for flogging members of his clan and burning their homes. Written by Judge Eric Leach, the former was successful and upgraded to a murder conviction, the latter, which Baartman co-wrote with Judge Mohamed Navsa, was not.

From Hangberg in Cape Town, Baartman attended Grassy Park High School and obtained his LLB from the University of the Western Cape in 1992. She has previously worked as a prosecutor in the Asset Forfeiture Unit, and as a magistrate.

In 2007, Baartman was selected to participate in the National Training Programme for Aspirant Women Judges, before being appointed as a judge to the High Court in Cape Town in 2009.

During that Judicial Service Commission interview, she spoke of her “lengthy” struggle with the National Prosecuting Authority to be allowed to act as a judge. The NPA, according to Baartman, believed her acting stints had constituted a conflict of interest and had asked her to repay the money earned over that period. She eventually resigned to pursue a career in the judiciary: “Once I applied my mind it, I could see the point and I resigned,” she said.

Baartman was eventually unsuccessful in her interview.