Further appointments: N/A
First appointed as a judge: 31-10-2010
Key judgments: (1) S.O.S SUPPORT PUBLIC BROADCASTING COALITION AND OTHERS V SOUTH AFRICAN BROADCASTING CORPORATION (SOC) LIMITED AND OTHERS 2019 (1) SA 370 (CC) (28 SEPTEMBER 2018) ; (2) AFRICAN BANKING CORPORATION OF BOTSWANA LTD V KARIBA FURNITURE MANUFACTURERS (PTY) LTD AND OTHERS  4 ALL SA 432 (GNP) ; (3) MOTSWANA AND OTHERS V AFRICAN NATIONAL CONGRESS AND OTHERS (35398/18)  ZAGPJHC 4 (6 FEBRUARY 2019)
One of seven female 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 Bench in 2010, she became the first person from the Constitutional Court’s law researcher programme to be appointed to the judiciary. It would be a landmark moment if she were to be the first member of that Constitutional Court cohort of clerks to be appointed to the country’s apex court.
Kathree-Setiloane acted at the Constitutional Court from July to December 2017. That stint dominated her unsuccessful interview for appointment to the Constitutional Court in 2019 when it emerged that a compliant had been lodged against her by her law clerks, including the daughter of current Supreme Court of Appeal president Mandisa Maya.
The matter was eventually “resolved” by Deputy Chief Justice Raymond Zondo and Kathree-Setiloane said during the 2019 interview that 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”.
During her stint at the Constitutional Court it was asked to rule on the Competition Commission’s investigative powers and whether a 2013 deal between the SABC and pay-TV platform MultiChoice was a notifiable merger.
In terms of an agreement between MultiChoice and the SABC, the former paid over R500-million over five years in exchange for exclusive rights to air content from the public broadcaster’s considerable archive.
With eight others concurring, Kathree-Setiloane held that the need to summons relevant information and documents from persons or organisations and to summons people with knowledge of relevant facts, was crucial to the powers of the Commission when investigating mergers and transactions that may give rise to a merger.
“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.
She further held that the 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.
In 2019, at the South Gauteng High Court, she heard and handed down a judgment in a matter that reflected the messy quagmire the ANC finds itself in after the kleptocratic, self-serving tenure of its former president, Jacob Zuma.
In Motswana and Others v ANC and Others, the applicants had approached the court to declare as unlawful the removal of former North West premier Supra Mahumapelo as leader of the ANC in the province and the dissolution of the party’s provincial executive committee (PEC).
The application was based on procedural fairness and substantive irrationality, in that the branches and regions were not notified of the impending decision, nor were they consulted or given proper reasons for the decision to dissolve the PEC. The applicants had also argued that the ANC’s national executive committee had failed the party’s constitutional requirements by not demonstrating the necessity of dissolving the PEC.
Kathree-Setiloane rejected an argument that the relief sought was moot, holding that a resolution was “of paramount importance to the larger public as well as to the general ANC membership, and that determination of the question would provide certainty for the future”.
On procedural fairness, Kathree–Setiloane held the ANC’s Constitution stipulates the powers of the NEC to dissolve or disband a PEC were constrained by the requirement of necessity and also by the requirements of procedural fairness. Therefore, the branches in four regions in the province were entitled to be notified and consulted prior to any decision by the NEC to dissolve the PEC.
Kathree–Setiloane held that the consultative meetings were not with the NEC, but with the party’s national working committee which had no power to dissolve the PEC. The purpose of the meeting was said to be an assessment of the state of the organisation for its readiness for the general elections.
“This means that Branch members who attended the purported consultative meetings had absolutely no clue that the PEC would be dissolved. Under any interpretation, these meetings do not equate to consultative meetings with the Branches on the question of whether the PEC should be dissolved,” Kathree-Setiloane found.
The decision to dissolve the PEC was set aside and the disbanded body was ordered to be reinstated.
The 2015 high court matter, McBride v Minister of Police and Another, related to the independence of the Independent Police Investigative Directorate (IPID). Following his suspension by the police minister for alleged misconduct, IPID head Robert McBride sought an order declaring relevant sections of the IPID Act and Regulations, the Public Service Act and the ‘SMS handbook’ to be unconstitutional.
Finding that the independence of the police watch-dog was constitutionally guaranteed Kathree-Setiloane held that the Constitutional Court’s recognition, in the Glenister II judgment, of the necessity of an independent anti-corruption unit for the protection of rights in the Bill of Rights and to meet South Africa’s international obligations applied with equal force to IPID.
Kathree–Setiloane 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.
“The Minister’s power to unilaterally suspend or remove [IPID’s] Executive Director poses substantial risks to the independence of IPID and its ability to investigate corruption and other abuses of power within the police service. An Executive Director who constantly fears for his or her job will be less inclined to carry out these responsibilities where this threatens to embarrass or expose the Minister or other high-ranking politicians,” she wrote.
She therefore found the provisions were unconstitutional and invalid, likewise the decision to remove McBride was unlawful and invalid. The decision was confirmed by the Constitutional Court which held: “The High Court gave adequate consideration to what a just and equitable remedy should be as required by section 172 of the Constitution. Its conclusion was well-reasoned and fully supported by the facts of the case. Accordingly, I confirm the orders of the High Court.”
Kathree-Setiloane has written numerous articles including Moseneke and Economic Justice which was inspired by aspects of former deputy chief-justice Dikgang Moseneke’s autobiography, My Own Liberator, and Constitutional Court judgments including Sebola and Nkata Ch; Rich Man, Poor Man: it shouldn’t really matter, costs awards in constitutional litigation; Public Interest Law: Its Continuing Role in South Africa and Have our Efforts Paid Off? A critique of the New Constitution from a Feminist Perspective.
Kathree-Setiloane has acted at the Supreme Court of Appeal, the Labour Appeal Court and the Competition Appeal Court.
She 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. After which, her career has seen her work as in-house counsel at the Legal Resource Centre’s Constitutional Litigation Unit, an advocate at the Johannesburg Bar (1997-2006) and as a lecturer at the University of the Western Cape and the University of Maryland Law School in the United States.
She is currently a board member of the Centre for the Study of Violence and Reconciliation and the Institute of Directors Southern Africa.
April 2019 Interview:
April 2019 JSC Interview Synopsis:
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.