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Judge J W Eksteen

Capacity: Judge
First appointed as a judge: 2010 (Eastern Cape, Gqeberha)
Gender:  Male
Ethnicity: White
Date of Birth: 29 July 1957
Key judgments:

  • First Rand Bank Ltd v Fillis and Another 2010 (6) SA 565 (ECP)
  • Pentree Limited v Nelson Mandela Bay Municipality 2017 (4) SA 32 (ECP)
  • Bilankulu and Another v State (188/2020) [2020] ZASCA 114 (29 September 2020)
  • The South African Legal Practice Council v Alves and Others(1255/2019)  [2020] ZASCA 170(14 December 2020)

Candidate Bio:

A judge of the Eastern Cape High Court since 2010, Judge Jannie Eksteen has also spent five stints acting at the Supreme Court of Appeal (SCA) from 2015 onwards.

In the 2020 SCA matter of Bilankulu and Another v S the troublesome phenomenon of poaching of South Africa’s endangered rhino population came to the fore.

The appellants had been convicted in the high court or murder, unlawful hunting of rhinoceros, and unlawful possession of a firearm and ammunition after they had been ambushed by game rangers and police. A ranger had died during the shoot-out.

The poachers were each sentenced to a total of 50 years’ imprisonment, with five years conditionally suspended, and a non-parole period of 25 years. The appeal was against conviction and sentence.

Eksteen, with a full Bench concurring, first dealt with the appellants’ argument that the evidence of a Mr Khosa should have been excluded because the crime had been facilitated by the police and/or game reserve authorities through an undercover operation, and that without the assistance and encouragement of Khosa, the appellants would not have been able to enter the reserve.

It was argued that this conduct went beyond “providing the opportunity to commit the offence” and the evidence ought to have been excluded in terms of Section 252 A of the Criminal Procedure Act (CPA) which allows for traps and undercover operations to be set up and and the admissibility of evidence obtained in those operations. If the trap did not “go beyond providing the opportunity to commit the offence”, the evidence was automatically admissible.

Eksteen noted that the consent of the Director of Public Prosecutions had not been obtained and observed that the offence was a “serious one” which is  “disturbingly prevalent” and that the “decimation of the rhino population in South Africa is a matter of national and international concern”.

Eksteen found that Khosa had done “no more than to provide the opportunity for the commission of the crime proposed to him by the second appellant… Notwithstanding the failure to obtain the prior consent of the DPP, Khosa did no more than provide an opportunity for the commission of the offence”. The admission of the evidence was not detrimental to the administration of justice and did not render the trial unfair, he found.

Regarding cellphone records which were admitted as evidence midway through the trial and, and the appellants assertion that this compromised their right to a fair trial, Eksteen found that there was nothing in these records which contradicted anything put to the witnesses, and that the conduct of the defence had not been compromised.

The defence had the benefit of a six-week adjournment after the records had been disclosed, the appellants had not challenged the correctness of the records or any of the evidence relating to them. The argument of trial prejudice was therefore rejected.

On the appellants’ intention, Eksteen held: “[W]hilst there is no direct evidence that the appellants knew that a confrontation with rangers was possible, on a conspectus of the evidence, I do not think that any person engaged in rhino poaching in a State reserve could not have foreseen the inherent possibility of a shoot- out with rangers in the event of confrontation. In the circumstances I consider that it was proved that the appellants had ‘dolus indeterminatus’[the killing of an indeterminate person] in the sense that they in fact foresaw the possibility of a shoot-out with rangers and the concomitant possibility that anybody involved therein might be shot and killed.”

The appeal against conviction was dismissed but the effective sentence was amended to twenty five years imprisonment. This was because Eksteen found the high court had not given reasons for imposing the non-parole period and had done so without affording counsel for the appellants an opportunity to address it on the issue.

“The trial judge appears to have overlooked the impact of the cumulative effect of the various sentences. This is a misdirection which has resulted in a striking disparity between the sentence which he imposed and that which I consider appropriate,” he wrote.

In the 2020 SCA matter of Minister of Police & Another v Muller, respondent had sued the minister for damages for unlawful arrest and initial detention and, the minister as well as the National Director of Public Prosecutions (2nd appellant) for damages for his further detention after his first court appearance.

The claim was successful in the magistrates’ court, and an appeal to the high court was dismissed. Respondent was arrested after being found in possession of a SAPS vest at his apartment.

Eksteen, with a full Bench concurring, found that the respondent’s inability to give a satisfactory account of possession of the vest was an essential element of the offence. A ‘satisfactory’ explanation required the possessor to state where the goods had been obtained, and it must be clear that the possession was innocent. On the facts, Eksteen found that witnesses said a third person had brought the vest to the premises. On the evidence available to the arresting officer, this was “not only reasonably possible but also probably true.”

Eksteen held that the arresting officer’s own evidence “own evidence that the insignia were only visible after the vest had been removed from the blue cover and opened up, lends credence to Muller’s explanation that he was unaware of the fact that the vest was SAPS property and therefore probably stolen. There could be no conceivable reason to believe that this explanation was not reasonably possibly true. It is apparent from the explanation that Muller bona fide believed that he was entitled to possess it.”

The arrest and initial detention were found to be unlawful, but the appeal against the decision leading to further detention was upheld. Each party was ordered to pay their own costs.

The 63-year-old Eksteen obtained a BA (1978) and an LLB (1980) from the University of Stellenbosch before working as a prosecutor and then an advocate (1984-2009) during which time he was conferred silk in 1998.

A member of the Dutch Reformed Church, Eksteen served as chairperson of the General Council of the Bar (GCB) from 2006-2008 and was chairperson of the Eastern Cape Society of Advocates in 2000 and 2002.

Eksteen used his address at the conclusion of his term as GCB chairperson in 2008 to bemoan the “slow” pace of transformation among the advocates’ profession with less that 30 percent of the new entrants at the Bar over his chairpersonship being Black.

“My personal view is that the challenge in respect of transformation for future leadership of the Bar is twofold. First, the Bar will have to find ways to make sure that intelligent young people from less privileged backgrounds, particularly black scholars, have the opportunity to see the profession at first hand when there is still time for them to choose their direction of study. Secondly, greater financial support will have to be found to assist such young entrants in the first year of practice, possibly by way of loans. This may be difficult to achieve at local level, particularly at the smaller Bars and a national project may be required.”

April 2021 Interview:

April 2021 Interview Synopsis

A judge of the Eastern Cape High Court since 2010, Judge Jannie Eksteen has also spent five stints acting at the Supreme Court of Appeal (SCA) since 2015.

When asked about the “toxic atmosphere” at the SCA because of a so-called ‘Top Six’, he said that he was surprised by these allegations since he had only experienced collegiality and had “never witnessed a senior judge abusing a junior judge… I can say with a measure of confidence that the atmosphere in 2018 [after the intervention of Judge President Mandisa Maya] was much more relaxed than in 2015.”

The Economic Freedom Front’s Julius Malema told him that he appeared “demoralised” in the interview chair and gave the appearance that he did not trust the JSC to give him a fair hearing.

Eksteen said this was not the case and that this was just who he was, “what you see is what you get”.

This led to Maya describing Eksteen as “an introvert, Mr Malema”.

Eksteen’s interview lasted about 25 minutes. In that time he gave short, clinical answers in an awkward, but oddly endearing manner which suggested that he had little time for politicking and just wanted to sit quietly in his corner and get on with the job of being a judge.

Insofar as what the commission was able to get out of him, he told the JSC that while he “hesitated” to call himself an expert in any field of law, he had had a “varied practice” with “wide exposure” to a variety of law. He also appeared proud — we think, but can’t be sure, so inscrutable was he sometimes — of the fact that he had been overturned on appeal only once in his career.

Eksteen was not recommended for appointment.