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Judge John Eldrid Smith

Capacity: Judge
First appointed as judge: 26 July 2010 (Makhanda High Court, Eastern Cape)
Acting appointments: SCA (Oct 2021 – May 2022), LAC (Aug 2023 -Nov 2023).
Gender: Male
Ethnicity: Coloured
Date of Birth: November 1958
Qualifications: BA (Law)(UWC) (1979), LLB (Rhodes) (1981) Dipl (Adv. Labour Law) (UCT)(1989).

Key judgments:

Candidate Bio | Updated May 2024

Judge John Smith is a judge of the Eastern Cape High Court, Makhanda.

Few people have deeper roots in the Eastern Cape soil than Smith. Born in the Herschel district of Sterkspruit, overlooking the mountain Kingdom of Lesotho, Smith would later grow up and study in Queenstown (eKomani), still in the Eastern Cape.

Apartheid’s racialised education system would force Smith to journey south to study for the BA (Law) degree at the University of the Western Cape, a so-called ‘Coloured’ university. Upon graduating in 1979, he quickly went back to the Eastern Cape to study for LLB degree at Rhodes University, which he obtained in 1981.

Upon his admission as an attorney in 1984, Smith would spend the next 28 years practising at the well-known law firm Smith Tabata, which he co-founded. In addition to serving as partner, director and later CEO at Smith Tabata, Smith also served in professional organisations such as the Eastern Cape Democratic Lawyers, and later the National Association of Democratic Lawyers (NADEL) from 1983 to 1992.

Curiously, from 1994, Smith served as a member of the Eastern Cape Provincial Legislature. But his political career wouldn’t last long, and in 1995 he went back to his practice as a labour and property lawyer.

Smith was appointed a judge of the Eastern Cape High Court in 2010. Based in the  Makhanda seat of the court, he also serves in Bhisho, Gqeberha Mthatha and East London.

Smith’s commitment to human rights and social progress, forged in his childhood in Sterkspruit and refined in various progressive organisations, is also seen in his jurisprudence, particularly in property law.

When 91 of his goats were impounded for trespassing by the Eastern Cape provincial government using a colonial-era ordinance, Lady Frere (Cacadu) farmer Bension Mdodana approached the court for assistance. In Mdodana v Premier Eastern Cape, Smith found the ordinance constitutionally invalid as it allowed an arbitrary deprivation of property, discriminated against landless stock owners, and violated the right of access to courts. The goats were released through a settlement before the case got to court, however in later proceedings the Constitutional Court partly confirmed Smith’s order, but stating that provincial ordinances need not be referred to the Constitutional Court for confirmation.

In 2014 Smith wrote the judgment in Shoprite Checkers v MEC Economic Development, a novel case dealing with whether a grocery shop’s wine licence constitutes ‘property’ in terms of section 25 of the Constitution. Smith found that it did, and that the MEC’s revocation of Shoprite Checker’s licence through a change in the regulatory regime was an arbitrary deprivation of that property in violation of the Bill of Rights in the Constitution. Later, the Constitutional affirmed Smith’s finding that a license is property but reversed the finding that Shoprite Checkers was arbitrarily deprived.

Intercape Mainliner Ferreira v MEC Transport Eastern Cape was a case where dozens of its long-distance buses were torched or stoned in several Eastern Cape towns (allegedly by rival taxi drivers), bus company Intercape sought an interdict mandating the provincial authorities to act to protect the company from ruin.  Smith held that section 91 of the National Land Transport Act obliges the MEC for Transport to take steps in to protect the safety and security of bus passengers and drivers, and that the MEC had failed to do so. He therefore ordered the MEC to take immediate interventions (including deploying police escorts) and develop a long-term action plan to ensure safety on bus routes across the Eastern Cape.

In a judicial career spanning 14 years, only four of Smith’s judgments have been overturned on appeal by the Supreme Court of Appeal and the Constitutional Court. From 2021 to 2023 Smith held several stints as an acting judge in the Supreme Court of Appeal and the Labour Appeal Court, which gave him valuable appellate experience.

At the Supreme Court of Appeal, Smith wrote four reported majority judgments, including SA v JHA 2022 (3) SA 149 (SCA), which held that arrear maintenance based on divorce decree constitute ‘judgment debt’ which only prescribes after 30 years – to the relief of many ex-wives owed their dues.

In the DVT v BMT 2022 case, the court was asked to determine whether a series of text messages sent over 20 months (a year and eight months) during an acrimonious divorce could be defined as ‘domestic violence’ for the purposes of a protection order under the Domestic Violence Act of 1998. After analysing the law, Smith found that even though certain messages contained insults, ridicule and were of a disrespectful nature, they did not constitute domestic violence. Therefore, they did not justify an interim protective order. He therefore dismissed the appeal against the high court judgment.

An avid cricket fan, Smith also chaired a ministerial inquiry into transformation of SA Cricket. He also served as trustee of various NGOs including the Legal Resources Centre, Afesis-Corplan and the Eastern Cape Housing Board. He was served a term as president of the Border-Kei Chamber of Business.

Smith’s deep roots in the rural Eastern Cape, his long career in legal practice, his community service, and his impactful career in the judiciary would stand him in good stead in judicial leadership. However, his appellate experience tilts the scales towards his being an ideal candidate for the Supreme Court of Appeal.

SCA Interview synopsis | October 2023:

Smith humbly said that he had found the SCA to be challenging and new. He emphasised his love for the judgement writing, as he did in his 2022 interview. He spoke about how he enjoyed the conciseness of the SCA judgements. He claimed to have adapted to the environment early in his acting stint. However, he stated that it was steep learning curve.

He was criticised by Petse for sloppy writing. In his judgement, he only names the judges and from which court the case emanated from. However, contrary to the style guide he fails to state which judges sat in the court of first instance and those who sat on the appeal bench.

Petse continued and addressed the instances where certain judgements of his were recalled as he had made a typographical mistake mixing up the parties. He continued and brought up that a few other cases of his contained mistakes which show that he does not pay attention to detail. Smith then responded that this happens sometimes.

Petse then referred to a comment from certain legal bodies, which contained a statement from a judge in his current division. The submission stated that losing him from the Eastern Cape division would destabilize the division and he is needed there. Petse continued that in the last few years, the SCA has lost 16 Judges full of experience, and asked him that upon self-introspection – does he believe that he is deserving and will contribute enough to fill those shoes.

Smith responded that he could never replace those judges but has proven himself to work hard and diligently. He has been a judge for 13 years, communicates with parties appropriately and fairly. He takes constructive criticism and has only made one substantive mistake. The rest are stylistic errors and only a few grammatical errors.

However, they have all been submitted timeously. He then alleged that the criticism he had received from the GCB on the errors contained in his judgements have mostly been aggrieved parties who were on the receiving end of his cases.

Baloyi and Ngcukaitobi added that the reasoning in his cases unclear, his judgements do not flow.

Smith’s application to the SCA was unsuccessful.

SCA Interview Synopsis | October 2022

Before his opportunity to gain appellate experience, he was given valuable advice that you do not write for yourself, you write for the court, and he was attracted to the way that appellate decisions are written as well, and the style with which these judgements are written. He decided very early that those are the kinds of judgements he wants to write, and which style he would want to adopt. And he has a similar and particular way of writing – the case for more accessible judgements and wrote a paper on how to approach cases as advice and how to enjoy judgement writing. He enjoys judgement writing.

Petse stated that he recommended that Smith receives a thorough style guide and there is a template annexed to the style guide. However, in one of his judgements he does not seem to have stuck to the prescripts of the style guide in all his judgements. For example, the Appellate court requires you to refer to the court a quo and the current court and distinguish them and their decisions.

Eastern Cape Judge President Interview Synopsis | April 2017

Judge John Smith said that he had initially been “cynical” of the case-flow management system initiated by Chief Justice Mogoeng Mogoeng, but that he had been convinced of its efficacy after being deployed by Eastern Cape Judge President Themba Sangoni to sit on the national Case-flow Management Task Team.

“A judge walking into a court at 9.30 in the morning must walk into a functioning court,” said Smith. He said that making practical, everyday changes to the functioning of the courts, like ensuring the accused are transported to and from prison timeously would assist in the finalisation of cases. Smith also identified the Mthatha courts as having the biggest problems with regard to backlogs and a lack of resources.

He said that gender and race transformation of the judiciary needed to be approached strategically to “ensure that there is a pool of competent lawyers appearing in the high court and doing substantive cases” because black and women judges don’t emerge “from the woodwork”.

When asked what he had done, as an attorney, to transform the legal fraternity, Smith said he had briefed several several black advocates, including the late Chief Justice Pius Langa and Constitutional Court Justice Thembile Skweyiya before they were appointed to the Bench.

He was later asked by acting Supreme Court of Appeal President Mandisa Maya if he had briefed black female advocates at the time and Smith, stretching his mind, remembered one. Maya then observed that she had been practising as an advocate in Mthatha over that period and remembered the large volume of work his firm did there, but not being briefed by it. Smith said he remembered his partner attempting to brief her once but could not remember why this did not happen.