Capacity: Judge
First appointed as judge: October 2010 (Gauteng, Johannesburg)
Gender: Female
Ethnicity: Indian
Date of Birth: January 1965
Qualifications: BA LLB (UKZN) LLM (Georgetown Law, USA)
Key judgments:
- Spar Group Limited v Absa Bank Limited (74870/2019) [2020] ZAGPJHC 259 (14 August 2020)
- Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg v Minister of Police (18205/2018) [2020] ZAGPJHC 146; [2020] 3 All SA 902 (GJ); 2021 (1) SACR 66 (GJ); 2021 (2) SA 220 (GJ) (29 June 2020)
- Eskom Holdings SOC Limited v National Energy Regulator of South Africa (74870/2019) [2020] ZAGPJHC 168 (28 July 2020)
- O.S Support Public Broadcasting Coalition v South African Broadcasting Corporation (SOC) Limited 2019 (1) SA 370 (CC) (28 September 2018)
- Cele v Avusa Media Ltd (08/10831) [2013] ZAGPJHC 15; [2013] 2 All SA 412 (GSJ) (14 February 2013)
Candidate Bio:
Judge Fayeeza Kathree-Setiloane is a judge of the Gauteng High Court, Johannesburg.
One of seven researchers appointed at the inception of the Constitutional Court in 1995, Judge Fayeeza Kathree-Setiloane clerked for Justice Yvonne Mokgoro. When appointed to the Gauteng High Court bench in 2010, she became the first person from the Constitutional Court’s law researcher programme to be appointed to the judiciary.
Kathree-Setiloane has an impressive record of over 40 reported judgments as a high court judge. Several of those judgments have been confirmed on appeal, including by the Constitutional Court.
In the case of McBride v Minister of Police, relating to the independence of the Independent Police Investigative Directorate (IPID) and its executive director, Kathree-Setiloane held that an independent anti-corruption unit’s independence is essential for the protection of rights in the Bill of Rights and to meet South Africa’s international obligations. This was in line with the Constitutional Court’s judgment in Glenister II, and of necessity applied with equal force to IPID. She held that it was “necessary to ensure that both the Directorate and its Executive Director are clothed with adequate independence to avoid ‘political interference’ from the police minister. She further found it was “imperative” that the suspension and removal from office of the Executive Director be subject to parliamentary oversight through a veto power.
In a dispute between SA’s two largest airlines, South African Airways and SA Airlink, Kathree-Setiloane was called upon to decide whether Airlink could recover the monies SAA received for selling flight tickets on behalf of Airlink shortly before SAA went into business rescue. In a groundbreaking judgment in the still novel area of business rescue, Kathree-Setiloane found that Airlink could not claim the revenue SAA received from the ticket sales as its own, and therefore Airlink stood just like any other creditor to SAA before the latter went into business rescue. As such, Airlink’s debt was subject to the moratorium against legal action while SAA was still in business rescue. She therefore dismissed Airlink’s claim. This judgment was confirmed by the Supreme Court of Appeal.
Kathree-Setiloane has considerable experience as an appellate judge. She has consistently acted as judge of the Labour Appeal Court from 2014 to 2022. She also served as an acting judge in the Competition Appeal Court from 2018 to 2022. She acted at the Supreme Court of Appeal for two terms from Dec 2015 to Jun 2016, and then again for four terms from December 2022 to December 2023.
Kathree-Setiloane’s stint at the Labour Appeal Court generated an impressive 20 reported judgments.
Kathree-Setiloane acted at the Constitutional Court from July to December 2017.
During her stint at the Constitutional Court, Kathree-Setiloane was called to rule on the Competition Commission’s investigative powers and whether a R500 million deal giving pay-tv platform MultiChoice exclusive rights to air content from the public broadcaster, SABC’s considerable archive was a notifiable merger in terms of the Competition Act.
With eight other justices concurring, Kathree-Setiloane held that the need to summons key documents and people with knowledge of the facts was crucial to the Competition Commission’s investigative powers in mergers transactions.
“Any contrary interpretation would defeat the purpose of merger regulation under the Competition Act which is to maintain competitive market structure by ensuring ‘that transactions which are likely to substantially . . . lessen competition should be carefully examined by the competition authorities,” she wrote.
Kathree-Setiloane further held that the Competition Commission’s investigative powers were legislatively mandated by the Competition Act, and unless the court order specifically prohibits the Commission’s use of its coercive and non-coercive statutory powers in carrying out its mandate, the Commission’s powers remained intact.
Events from Kathree-Setiloane’s 2017 acting stint dominated her unsuccessful interviews for appointment to the Constitutional Court in 2019, and again in April and October 2021, when it emerged that a compliant had been lodged against her by her law clerks, including Ms Wela Mlokoti, the daughter of Justice Mandisa Maya. While Kathree-Setiloane noted that it was ‘resolved’ during her 2019 JSC interview, it later emerged that the issue still was the subject of a formal complaint at the Judicial Conduct Committee, which had referred it to Gauteng Judge President Mlambo, who dismissed the complaint. On appeal, the Judicial Conduct Appeal Committee assessed the four grounds of complaint and dismissed all but one of them. This related to an impression Kathree-Setiloane created that Mlokoti had unilaterally issued court directives, which was incorrect, the JCAC ruled. Although the JCAC noted that Kathree-Setiloane apologized privately to Mlokoti, the appeal body nevertheless ordered that Kathree-Setiloane issue a written apology to Mlokoti and all the justices and staff of the Constitutional Court – which she did.
Kathree-Setiloane also has an academic streak. She was a research assistant at the University of KwaZulu-Natal’s Centre for Socio-Legal Studies (1989 – 1990); a lecturer in public law at the Universities of the Western Cape and Maryland, Baltimore (1994 – 1995); and a member of the editorial board of the SA Journal on Human Rights (1997 – 2004). She has written numerous academic articles, including several on women rights and discrimination, public interest litigation, and telecommunications law. She wrote a chapter in the 2017 edition of Acta Juridica titled Moseneke and Economic Justice which was inspired by aspects of former deputy chief-justice Dikgang Moseneke’s autobiography, My Own Liberator, and his constitutional jurisprudence.
Kathree-Setiloane obtained a BA and LLB from the then-University of Natal in 1991 and an LLM from Georgetown University in the United States in 1993.
Shortly before her judicial appointment Kathree-Setiloane served as director of Werksmans Advisory Service, the corporate consultancy arm of the law firm. However, her longest career stint was practising as an advocate at the Johannesburg Bar (from 1997). While there, she also served on the Bar Council, the national General Council of the Bar, and currently the National Bar Examination Board as a judge member. She was a founding member of Advocates for Transformation and is currently a member of the SA Chapter of the International Association of Women Judges.
As of 2023, Kathree-Setiloane is the most senior woman judge at the Johannesburg High Court.
Asked in her JSC application form what her most significant contribution to the law and the pursuit of justice has been, Kathree-Setiloane notes that she has:
“…[A]cted for the Lesbian and Gay Equality Project and 18 other applicants in the matter of Minister of Home Affairs v Fourie; and Lesbian and Gay Equality Project v Minister of Home Affairs in which the Constitutional Court declared the common law definition of matter, and the prescribed formular to be unconstitutional and invalid as they did not permit same sex coupled to enjoy the status, benefits and responsibilities accorded to heterosexual couples… This judgment paved the way for the Civil Union Act to be passed a year later, entrenching the freedom of same sex coupled to choose whether to enter into a same sex union.”
October 2023 Interview
Judge Fayeeza Kathree-Setiloane’s October 2023 interview for a position on the Supreme Court of Appeal was successful. She was nominated for appointment.
April 2022 Interview
April 2022 Interview Synopsis
Gauteng High Court Judge Fayeeza Kathree-Setiloane’s previous two Judicial Service Commission (JSC) interviews for a position at the Constitutional Court had raised questions about her apparently abrasive temperament — and illuminated the patronising and paternalistic approach by some male commissioners to no-nonsense female candidates.
Kathree-Setiloane is both sharp and sharp-tongued.
When commissioner Jomo Nyambi, an ANC parliamentarian, asked the candidate “how different” she was from the person interviewed previously, she responded that her previous interviews had helped her “grow in strength” and “helped point out what is required from a judge”:
“This room brings a lot of wisdom to any candidate who appears before it,” she concluded, leaving observers wondering whether that tongue was cutting into her cheek.
If she was being ironic it would have escaped most commissioners during an interview which did not throw up any storms, or tea-cups.
Mpumalanga Judge President Frans Legodi asked the candidate how her judicial experience related to the needs and values of South Africans and whether her appointment would send a symbolic message to citizens of a similar background to hers.
To the first question, Kathree-Setiloane responded that she was committed to South Africa’s transformative Constitutional project, social justice and the “need to take a victim-centred approach to adjudication”.
On the symbolism of her potential appointment, the Gauteng judge said she felt it was important for the country’s apex court (which currently has three permanently appointed female judges) to have strong competent women on the Bench, “not for the sake of it” but to send messages of trust in, and inspiration from, that presence.
Attorney Hlaleleni Matolo-Dlepu noted that Kathree-Setiloane was passionate about training female practitioners and socio-economic-rights and asked her about ways to “uplift” South African customary law.
She said that while customary law was considered a “step-sister” in the legal family, it had an “important role to play in dispute resolution” and that it was important in the development of the common-law to infuse customary law into it, “rather than developing customary law in line with common law”.
Advocate Kameshni Pillay SC, representing the advocates profession, touched on LGBTQI rights and asked the candidate whether these rights were properly protected within the current Constitutional framework and if the courts were sensitised enough to lawyers and litigants who identified outside binary classifications.
Kathree-Setiloane said it was important for the courts to protect the LGBTQI community since they “faced violence at the hands of heterosexual people”. She added that courts and the police needed to be sensitised to the challenges and needs of the queer community and to women generally because of the high incidence of gender-based violence. She also suggested that amendments be made to legislation dealing with domestic violence.
Other questions that came up in her interview related to the increased workload and slow pace of judgments being handed down at the Constitutional Court and the high levels of political “law-fare” in South African courts.
Kathree-Setiloane was listed by the JSC for potential appointment.
October 2021 Interview
April 2021 Interview
April 2021 Interview Synopses
That Gauteng High Court Judge Fayeeza Kathree-Setiloane was recommended to president Cyril Ramaphosa by the Judicial Service Commission (JSC) for appointment to the Constitutional Court would have surprised many since she never really settled into her two-hour interview and was prone to long, meandering and nervous answers during it.
She plodded unfocused through some easy questions, including one about a paper which she had delivered regarding the jurisprudence of former Deputy Chief Justice Dikgang Moseneke.
Her nervousness was linked to her last appearance at the JSC, an unsuccessful 2019 interview for a position to the country’s apex court.
During that interview, it emerged that while Kathree-Setiloane was acting at the Constitutional Court one of her law clerks — who was also the daughter of Mandisa Maya, the Supreme Court of Appeal president — had lodged a complaint against her for mistreatment.
This cropped up again. She noted that a complaint to the JSC following her last interview, when it was alleged that she had misled the commission regarding the circumstances and outcome of her spat with the clerk had been dismissed. The Judicial Conduct Committee found that the allegations against her had been “unsubstantiated”.
When Kathree-Setiloane was invited to tell the commission what she learned from that experience, she resorted to the kind of “in my day” condescension that suggested she perhaps didn’t learn very much.
A former Constitutional Court clerk herself, Kathree Setiloane observed that “for us it was so difficult to get these jobs… we worked… perhaps the work ethic is different with the youth these days… maybe we have to be more patient with them”.
Comments which apparently belied a later comment: “I have such tremendous respect for young people.” This caused Economic Freedom Fighters MP Julius Malema to later accuse her of “puppeting” young people and treating them like “kids”.
Kathree-Setiloane said this was not the case and that while she expected “high standards” from all the people she worked with, she showed young people “compassion” and sought to “build them”.
Asked by ANC MP Sylvia Lucas to delve into the rights of women and how South Africa’s democracy and legal system appeared to have failed them, Kathree-Setiloane observed that they were “the worst off in society” and that “a lot needed to be done in relation to their plight”.
She added that educational work was required around women’s rights but that the courts had become “more sensitive and aware of the need to approach matters pertaining to women differently”.
Mogoeng said people who have read her judgments had told him she writes “so well” and asked her to explain why this was. Kathree-Setiloane became emotional, shedding a tear before composing herself and saying this was because of space and support she received from her husband and family. And the experiences as a judge which had sharpened her judgment writing skills, including her time spent acting at the Supreme Court of Appeal.
When asked about the allegedly toxic atmosphere at the SCA by a group of senior judges known as the “Top Six”, Kathree-Setiloane said she thought they “expected high standards” and will “intervene” and “unpack judgments” if required.
When invited to “brag” about her suitability for appointment to the country’s highest court, Kathree-Setiloane pointed to her varied legal experience having served on the Competition Appeal Court, the Labour Appeal Court, and the High Court and told the commission that she was “committed to the transformation project of our Constitution”.
April 2019 Interview
April 2019 Interview Synopses
Judge Fayeeza Kathree-Setiloane’s interview — like most of those during the April sitting of the Judicial Service Commission (JSC) — navigated themes from the irrelevant to the intriguing; for the light, they shed on the racialised and gendered politics of the legal fraternity.
First, her briefing record with black and female juniors when she was working at one of the country’s top attorneys firm was examined, as was language’s place in making the law, and justice, more accessible.
Then, it exploded.
Simmering underneath the week was the recusal of Mandisa Maya from the Constitutional Court interviews which caused their postponement from Monday, 1 April to Wednesday, 3 April.
Chief Justice Mogoeng Mogoeng described confusion and chaos around Kathree-Setiloane’s start to her 2017 acting stint — which was about to start despite an official letter of appointment not being sent out.
According to Mogoeng an apparently panicked court manager approached him to describe a judge “occupying” chambers and demanding her files for cases and a parking bay — which had apparently left the chief justice “shocked”.
Kathree-Setiloane told the commission that it was much more amicable than described and that she had come to the court one the advice of another judge who had acted there previously, and because she was keen to get working. But the idea that she had behaved hysterically appeared to have been planted with the commission.
It also emerged during Kathree-Setiloane’s interview that Maya’s daughter had served as one of the high court judge’s clerks when she had acted for two terms at the Constitutional Court in 2017.
Mogoeng had raised an incident when some of Kathree-Setiloane’s clerks — including Maya’s daughter — had made complaints about the judge’s behaviour towards them. These included allegations that Kathree-Setiloane had “shouted” and “screamed” at one of them while she was in hospital causing her blood pressure to rise and a nurse to instruct her to switch off the phone.
This had led to the clerks lodging a complaint which was eventually “resolved” by Deputy Chief Justice Raymond Zondo. Kathree-Setiloane said Zondo had told her the charges were so ridiculous that “even her mother will give her a good scold about it”.
Kathree-Setiloane told the commission that she had been “hurt” by the allegations and “not happy that there was no inquiry… I wanted a finding to be made”. She added that while one clerk was transferred to another judge another had continued to work with her until the end of her acting stint.
Justice Minister Michael Masutha said Kathree-Setiloane’s “tenor of voice” and “manner of speech, at best” came across as “fairly overbearing.
Kathree-Setiloane said she was “an assertive person” and that it was “the first time I’ve been called overbearing”.
“This is one clerk out of hundreds of people I have worked with who has a problem with me. I am assertive, I will not apologise for this,” she retorted to Masutha’s sexist suggestion.
Attorney Sifiso Msomi had earlier cited the late Chief Justice Pius Langa’s famous 2006 paper titled Transformative Constitutionalism, which “bemoaned” the legal culture in South Africa being more “formal rather than substantive” and asked her if anything had changed since then.
Kathree-Setiloane said the Constitution was a transformative document which needs a substantive understanding to be applied and that there was some progress towards substantive equality through the law.
Supreme Court of Appeal (SCA) justice Azhar Cachalia, filling in for the court’s president, Maya, had asked previous candidates whether they were aware of academic criticisms of commercial law judgments emanating from the Constitutional Court and if they had experience to address this.
The line of questioning instigated a long and robust debate between Kathree-Setiloane and various commissioners, including Dali Mpofu, who stressed the racist elements that led to black practitioners not being briefed for commercial cases, thus making them inexperienced when in this areas when applying for judicial appointment.
Describing customary law as the “step-sister” of the common law and civil law, Kathree-Setiloane said judges had a “duty” to develop it within the spirit and purport of the Bill of Rights and the Constitution. She also agreed that legal education would assist in practitioners developing customary law.
