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Judge Mokgere Busisiwe Shareen Masipa

Judge M B S Masipa_2337

Capacity: Judge
First appointed as judge: 1 July 2016 (KwaZulu Natal High Court, Durban)
Gender: Woman
Ethnicity: Black
Date of Birth: March 1974
Qualifications: B. Proc (Limpopo)(1996), LLB (1998), LLM (2015)(UKZN)

Key Judgments:

Candidate Biography | Updated May 2024

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 Limpopo) in 1996. She would later relocate to Durban to study for her LLB and LLM degrees at the University of KwaZulu-Natal, a province she would later permanently settle in.

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, a firm she would later serve as attorney and director from 2004, but now under the name Masipa-Nepaul Inc. In 2007 she took off on her own and founded the firm Masipa Inc.

A labour lawyer by specialisation, 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 five reported judgments to her name, including the ground-breaking judgment in NM v John Wesley School.

The John Wesley School case concerned a father 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 in terms of the parent contract to recover school fees, it could not do so through humiliating and excluding the child, or not following a fair procedure.

“The exclusion policy as a result of non-payment of school fees in so far 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 as 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 was different from Nkala based on the fact that in the current case; the deceased had died before the institution of the claim, and found that the common law should not be developed as per the conclusion in Nkala. Instead, that the legislation development is a more appropriate route, and further that the factual evidence put forward by the plaintiff was not sufficient enough to support the development of the common law as requested.

Masipa earned valuable appellate experience through acting in the Supreme Court of Appeal (June 2022 to May 2023) and the Competition Appeal Court (January – December 2022).

While acting in the SCA, Masipa co-wrote two judgments, and single-authored the Louw v Patel judgment on behalf of the court. This case a medical negligence claim for damages by the appellant, Louw to the respondent, Patel. Both parties are general medical practitioners. The Patel alleges that the 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 in this case concerned negligence, and whether there was a causal link between the negligent conduct of Louw and the harm suffered by Patel.

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.

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 hight court decision which affirmed the JSC’s decision to reject the Judicial Conduct Tribunal’s recommendation that Judge Motata be impeached after finding him 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 Jusitce Ponnan) ruled that the matter be remitted to the JSC for it 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 but it must now consider the criticisms in the SCA judgment and take a fresh decision on the punishment for the gross misconduct finding.

Masipa was previously a member of the KwaZulu-Natal Law Society, (2002 – 2016), the Black Lawyers’ Association (2011 – 2016). She is currently an examiner for the law society’s attorneys’ admission exams (since 2015) and a member of the SA Chapter of the International Association of Women Judges (since 2016).

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 proves her independent-mindedness (which is essential for appellate courts), her relative paucity in sole-authored judgments in the SCA might prove to be a disadvantage.

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.