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Judge Mokgere Busisiwe Shareen Masipa

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  • Judge Mokgere Busisiwe Shareen Masipa
Judge M B S Masipa_2337

Capacity: Judge
First appointed as judge: July 2016 (KwaZulu-Natal High Court, Durban)
Gender: Female
Ethnicity: African
Date of Birth: March 1974
Qualifications: B. Proc (1996) (University of the North, Limpopo), LLB (1998), LLM (2015) (UKZN)

Key Judgments:

Candidate Biography | Updated August 2026:

 Judge Mokgere Masipa is a judge of the KwaZulu-Natal High Court (not to be confused with Judge Thokozile Masipa).

Born in the booming mining town of Mogalakwena, Limpopo, Masipa read for her initial B.Proc law degree at the then University of the North (now University of Limpopo) in 1996. She later relocated to Durban to study for her LLB and LLM degrees at the University of KwaZulu-Natal, a province she would later settle in permanently.

Masipa’s lifelong relationship with the courts began during her 2-year stint as a Judges’ Associate in the KwaZulu-Natal High Court from 1998. From 2000, she served as a candidate attorney at Durban law firm Anand Nepaul Attorneys, which she later joined as an attorney and director in 2004, now operating as Masipa-Nepaul Inc. In 2007, she went on her own and founded Masipa Inc.

As a labour lawyer, Masipa has extensive experience in the labour dispute resolution system. She served as part-time commissioner on the Commission for Conciliation, Mediation and Arbitration (CCMA) from 2004 to 2016, and as an arbitrator at several industry bargaining councils, including for the motor, local government, public health, chemical, education, and public safety industries, among others. An accredited mediator, she also served as a panellist on the Tokiso Dispute Resolution Panel (2008 – 2016) and on the National Homebuilders Regulatory Council (2009 – 2011).
Masipa was elevated to the KwaZulu-Natal High Court bench in July 2016, after initially serving as an assessor in murder trials and five terms as an acting judge.

As a high court judge, Masipa has over 180 written judgments to her name, several of them reported, including the ground-breaking judgment in NFM v John Wesley School. The John Wesley School case concerned a father who was unable to pay private school fees for their child. The school then decided to terminate the parent contracts and remove the child from the school, after initially isolating them in the art room. After a preliminary High Court order returning the child to the school to sit for their exams, Masipa was then called upon to decide whether the child should remain at the school.

After analysing constitutional principles on children’s best interests, the right to basic education, and provisions of the South African Schools Act, Masipa found that the school acted unreasonably. She held that, while the school had a right, under the parent contract, to recover school fees, it could not do so by humiliating and excluding the child or by failing to follow a fair procedure.

“The exclusion policy, as a result of non-payment of school fees insofar as it is applied by the first respondent, results in a standard inferior to that which is applicable in public education… It is clearly contrary to public policy and is aimed at humiliating, degrading and victimising learners… The suggestion that it was a reasonable and justifiable means…is devoid of any merit. It is unjustifiable and infringes on the rights in both sections 28(2) and 29(3) of the Bill of Rights. It is thus unconstitutional and falls to be declared invalid.”

Her second notable high court case was Nortje v Road Accident Fund 2022 (4) SA 287 (KZD), which dealt with the transmissibility of a claim for damages from the deceased’s estate. The deceased had allegedly suffered shock, discomfort, pain, as well as permanent disfigurement and the loss of amenities of life, from a motor vehicle accident. The executor of his estate instituted a claim against the Road Accident Fund based on these damages; however, the common law principle provides that one cannot claim general damages (non-patrimonial) after the injured has died, only before and had reached litis contestatio (close of pleadings).

Relying on the judgment in the Nkala and Others v Harmony Gold Mining Co Ltd and Others case, where the court held that the common law should be developed to allow for the transmission of the general damages claim to the deceased’s estate, the plaintiff argued that similar principles should apply. However, Masipa pointed out that this case differed from Nkala because, in the current case, the deceased had died before the claim was instituted, and found that the common law should not be developed as in Nkala. Instead, legislative development is a more appropriate route, and further, the factual evidence put forward by the plaintiff was not sufficient to support the development of the common law as requested.

Masipa has gained valuable and diverse appellate experience by acting in the Supreme Court of Appeal (June 2022 to Sept 2024), the Competition Appeal Court (Jan 2022 – current), and the Labour Appeal Court (Apr – Sept 2026).

While acting in the SCA, Masipa co-wrote three judgments and single-authored the Louw v Patel judgment on behalf of the court, amongst others. This case concerned a medical negligence claim for damages by the appellant, Louw, to the respondent, Patel. Both parties are general medical practitioners. Patel alleged that Louw had breached his duty to attend to him with the care and skill of a reasonable doctor in respect of treating a gunshot wound. The central legal question concerned negligence and whether a causal link existed between Louw’s negligent conduct and the harm Patel suffered.

In the test for factual causation, Masipa looked at whether the conduct of the appellant in failing to timeously transfer the respondent to definitive care was proven to have caused or materially contributed to the amputation of the respondent’s leg. She found that the evidence provided that the appellant reasonably foresaw the need to urgently transport the respondent to a hospital that had the requisite facilities to treat his injury and the possibility of harm in the failure to do so. Therefore, he was negligent in omitting to do so. Regarding legal causation, she used the “but-for” test and concluded that “but for” the negligence, the injury would not have occurred.

Also at the SCA, Masipa wrote the dissenting judgment in a 3-2 bench split in Freedom Under Law v Judicial Service Commission, the “drunk driving judge” case. This was an appeal of an earlier high court decision, which affirmed the JSC’s decision to reject the Judicial Conduct Tribunal’s recommendation that Judge Motata be impeached after finding him guilty of gross misconduct. The SCA unanimously found that the JSC was unjustified in rejecting the recommendations and findings of the JCT, but the question is, what should be done thereafter? The majority judgment (by Justice Ponnan) ruled that the matter be remitted to the JSC to refer Motata to Parliament for impeachment. In her dissent, Masipa (joined by Justice Mocumie) agreed that the case should be referred back to the JSC.

Beyond her appeal-court work, Masipa has sat on high-profile full-bench matters in the KwaZulu-Natal High Court. In Maughan v Zuma, she co-wrote the judgment that set aside former President Jacob Zuma’s private prosecution of journalist Karyn Maughan and prosecutor Billy Downer. The court held that the prosecution was an abuse of its process and bore the hallmarks of litigation meant to silence a journalist rather than to vindicate any real legal right.

In e-Sat TV v S (2025), a full court struck down restrictions on the live broadcast of the corruption trial of former eThekwini mayor Zandile Gumede, reaffirming the principle of open justice and the media’s right to be heard before imposing such limits.

Furthermore, displaying a sound appreciation of the tension at the heart of asset-forfeiture law, Masipa wrote for a full bench in National Director of Public Prosecutions v Panday and Others (AR388/24) [2026] ZAKZPHC 2 (23 January 2026), hearing an appeal by the National Director of Public Prosecutions (NDPP) against an order that had allowed the Panday respondents to access restrained assets for living and legal costs.

The case concerned section 26(6) of the Prevention of Organised Crime Act (POCA), which lets a court release restrained assets for reasonable living and legal expenses. Masipa held that the section’s requirements are jurisdictional facts that must be proved by admissible evidence: a person seeking access must make full disclosure, under oath, of all their interests in the restrained property, and disclosure to a curator cannot stand in for disclosure to the court. Because that threshold had not been met, the court upheld the NDPP’s appeal. The judgment underlines the court’s supervisory role, and the premium POCA places on full disclosure, when weighing the preservation of assets against the rights of those affected.

Masipa was previously a member of the KwaZulu-Natal Law Society (2002 – 2016) and the Black Lawyers’ Association (2011 – 2016). She was previously an examiner for the Law Society’s attorneys’ admission exams (from 2015 to 2023) and is currently a member of the South African Chapter of the International Association of Women Judges (since 2016) and, most recently in 2025, became a mentor to aspirant judges at SAJEI.

Since last coming before the JSC, Masipa’s appellate footprint has widened. She has continued to act in the Supreme Court of Appeal, served as Acting Deputy Judge President of the KwaZulu-Natal High Court in early 2024, and in 2026 acted in both the Labour Appeal Court and the Competition Appeal Court. Outside the courtroom, she sits on the Council of the University of Limpopo and on the committee drafting an artificial-intelligence policy for the South African judiciary.

While Masipa was a labour law specialist in her attorneys’ practice, she has proven to be a judge with broad interests and experience, having written reported judgments in criminal law, constitutional law, and family law. While her dissenting judgment against four senior SCA judges demonstrates her independent-mindedness (essential for appellate courts), she has since delivered another sole-authored judgment in the SCA after coming before the JSC.

 

October 2025 JSC Interview

Following deliberations, the Judicial Service Commission (JSC) has decided that it will not recommend any candidate for appointment for the vacancy at the Supreme Court of Appeal. Judge Busisiwe Shareen Masipa’s  October 2025 interview for a position on the Supreme Court of Appeal was unsuccessful. She was not nominated for appointment.

SCA Interview | May 2024

In May 2024 Judge Masipa was interviewed by the JSC for a position on the Supreme Court of Appeal. Masipa was unsuccessful in her interview.

October 2023 SCA interview Synopsis

Masipa was among the 11 candidates whom the Judicial Service Commission shortlisted and interviewed one of four permanent appointments to the SCA.

In response to Chief Justice Zondo’s questions on how Masipa found acting as an SCA justices, an extremely shy Masipa stated that she enjoyed her acting as a justice at the SCA, that it was a new learning and challenging experience, “I got the hang of things’ more and more each term of her acting stint.”

Zondo praised Masipa for showing independence in writing dissenting judgements, adding that she would contribute greatly to the SCA from her experience in labour law and competition appeals.

However, SCA Deputy President Xola Petse pointed out that labour matters were more likely to be dealt with in the Labour and Labour Appeal Court than in the SCA.  “Although the SCA does not approach these matters, there are certain employment cases that go through the High Court and then are appealed at the SCA,” Masipa replied.

An aggressive Petse also raised concern that the appellate judgements allocated to Masipa had been co-authored, rather than single-authored by her. “I had arrived with a draft to Judge Gorven, but he asked that his name be mentioned because he made a substantial contribution to the judgment,” she replied. Masipa continued that she had made similar contributions to other judgements but never asked for her name to be included, lthough she doesn’t fault Gorvern for asking. Petse asked why she didn’t approach the presiding judge or to himself to express her frustration about her colleaguesnot responding to her. “I had informed the presiding judge that she was awaiting feedback from Judge Gorven and he confirmed that they await his response,” she said.

On this topic Gauteng Judge President Dunstan Mlambo  criticised Masipa for her delay in delivering the Nortje v Road Accident Fund judgement, which was only handed down in the third term when it was heard. He asked that as a High Court, she should understand the urgency of certain appeal judgements. “Part of the delay is attributed to the fact that one of the issues concerned the mootness of the case,” Masipsa said,  “I did not receive comments or feedback from her colleagues except from Judge Gorven who was named as the co-writer, whose comments came just before the end of term”.

The interview continued with Petse grilling Masipa with many more questions on mistakes she committing during the term, which let slip that Petse did not support her. The JSC did not recommend Masipa for appointment.

April 2016 interview

High Court Interview Synopsis:

Masipa was nominated for appointment by the commission despite leaving murky the details of a complaint lodged against her during her interview.

The complaint, which is being appealed, related an apparent confusion when her client did not arrive in court. Instead of withdrawing as an attorney of the court on the grounds that she did not have instructions, Masipa withdrew the application and tendered costs. She also faced complaints related to failing to comply with a court directive and a failure to supervise a candidate attorney.

Responding to questions about the challenges that female lawyers face within the fraternity, Masipa recounted events that underlined the entrenched patriarchy that exists.

Describing it as a “difficult environment” she said attempts to tackle the problem of black female practitioners not being briefed had proved unsuccessful despite approaches to both the State Attorney’s office and the private sector — as an individual and through organisations — with the latter being “even worse” in its intransigence to employ female lawyers.

Asked by KZN Premier Senzo Mchunu for a “specific instance” Masipa described an “instance that never escapes my mind” when sitting as an arbitrator. She had entered the boardroom early and sat down, whereafter the attorneys entered and “ignored me, they didn’t even greet me”.

“After a while, they asked me: ‘Are you the stenographer?’ I felt very humiliated,” said Masipa, later adding that incidents like these “do destroy the confidence of black female practitioners”.

While Masipa said she felt that the conduct of male lawyers appearing before her was often dismissive of her abilities and required that she “prove” herself to them, her gender did assist in dealing with cases involving rape and gender-based violence where survivors “felt relaxed” because the presiding officer was a woman.