Capacity: Judge
First appointed as a judge: 2013 (Western Cape)
Further appointments: 2017 (Competition Appeal Court)
Gender: Female
Ethnicity: Black
Date of Birth: 13 January 1973
Key judgments:
- Women’s Legal Centre Trust v President of the Republic of South Africa and Others, Faro v Bignham N.O. and Others, Esau v Esau 2018 (6) SA 598 (WCC)
- Sonke Gender Justice NPC v President of the Republic of South Africa 2019 (2) SACR 537 (WCC)
- Cape Bar v Minister of Justice and Correctional Services 2020 (6) SA 165 (WCC)
- Beyond Platinum (Pty) Ltd v Ellies Electronics (Pty) Ltd (73/2020) [2020] ZASCA 154 (27 November 2020)
- Lungisa v State 2021 (1) SACR 1 (SCA)
Candidate Bio:
Despite being the music and arts leader at the His People Christian Society and Church from 1992 until 2005, Western Cape High Court judge Nolwazi Mabindla-Boqwana would not have been prepared for the violent theatre and creative license expressed by litigants who have appeared before her.
Especially when adjudicating cases involving the troubled, and troublesome, members of the governing ANC.
In September 2020, while acting at the Supreme Court of Appeal (SCA) Mabindla-Boqwana was part of a full Bench which heard the appeal against sentencing of Nelson Mandela Bay municipal councillor Andile Lungisa.
Lungisa had, during a chaotic council sitting when the Democratic Alliance had controlled the municipality, hit the party’s deputy caucus leader, Rayno Kayser, with a glass jug filled with water.
Kayser lost consciousness and was rushed to hospital for medical attention. Lungisa was given a two-year sentence for assault with the intent to do grievous bodily harm.
Apparently easily startled, Lungisa had, in his appeal to the SCA, described his sentence as “shockingly inappropriate.”
With the concurrence of a full Bench, Mabindla–Boqwana found, in a judgment also written in IsiXhosa, that it was undisputed that the attack had “had adverse, long-term effects on the complainant…” and that the trial court could not be faulted for emphasising the gravity of the offence.
Agreeing with the trial court that communities were “entitled to expect a high level of responsible behaviour and maturity from its leaders”, especially in the council chamber which should be a “safe platform” for “robust debates” because decisions which “profoundly affect” the lives of communities are made.
“Political-party representatives should be exemplary in their keen understanding of the values of freedom of expression and respect for the rules of engagement. The integrity and credibility of the municipal administration in the eyes of the community should not be compromised,” she found.
She also noted that Lungisa had reneged on his duty as an ANC leader to instil discipline and lead from the front by his loutish behaviour, causing “his fellow councillors [to take] their cue from him” by also throwing glasses at other councillors.
The country suffered from “uncontrolled and unacceptable levels of violence”, and that the community expected courts “to impose sentences that recognise this prevalence and show its repugnance and contempt for such conduct,” Mabindla-Boqwana found.
This was not to “sacrifice the appellant on the altar of deterrence, but to impose a sentence fitting the circumstances of the case”.
She also rejected the argument that the atmosphere in the chamber, escrowed as being “charged with anger” was a mitigating factor. Instead, she found Lungisa’s version to be contradictory and that he was the “aggressor”.
In dismissing the appeal Mabindla–Boqwana held that Lungisa had shown no remorse and disagreed with the high court’s finding that that the sentence had been a “robust” one: “[It] meets the circumstances of this case and is in keeping with sentences that have been imposed by the courts in similar cases,” she found.
The ANC appears full of naughty boys and girls and another one of those, former Western Cape provincial party leader and minister for transport and public works, Marius Fransman, was another litigant who appeared before Mabindla-Boqwana.
In a high court matter going back to 2016, Mabindla-Boqwana heard an application by Fransman to review decisions Western Cape Standing Committee on Public Accounts (SCOPA) after he was summonsed to appear before it to testify about red flags raised by the auditor-general over his department’s use of consultants. His department had, over a three year period from 2008, spent a staggering R5-billion on consultants according to the Mail & Guardian. Many of the contracts had been awarded by the ANC-controlled provincial government before it was voted out of office in 2009.
When called to testify before Scopa in 2014 Fransman had refused to take the oath and stormed out of the meeting, according to media reports. Subsequently promoted to deputy-minister of international relations, Fransman then sought, through the courts, to stop Scopa in the Western Cape legislature from calling him to testify. He alleged this was merely a politically motivated campaign by the DA to discredit him.
Mabindla-Boqwana noted that the only evidence provided by the applicant to show that the relief sought would have a practical effect was a speech by the provincial Premier. There was no further indication that the current Scopa would summons the applicant to return.
“The question of whether the applicant should be re-summonsed would be a new issue which would have to be determined by the current committee. Relevant questions would have to be considered if and when the applicant is re-summonsed. The new members are not bound by the views of the previous committee. It is not known if the committee would grant or refuse the applicant’s requests, which the applicant seeks the court to direct. The context in which the requests might be made is also not currently determinable.”
Aware that an obvious separation of powers issue may arise, Mabindla-Boqwana held: “It is not the role of the judiciary to get involved in parliamentary politics, or to determine the internal arrangements, proceedings and procedures of provincial legislatures that are reserved by the Constitution for determination by those legislatures themselves. The judiciary would be impermissibly impinging on the terrain of the legislature if it were to do what the applicant wants it do.”
Mabindla-Boqwana also found that the current house rules “plainly does not provide for a right to legal representation” when appearing before Scopa, but merely provided that legal representatives had to abide by committee rules when appearing before the committee.
In dismissing the application, Boqwana concluded that Fransman sought “past relief with no substantial relief attached to it”, and that the chairperson of Scopa at the time of the case, had resolved the question of future conduct.
“[T]he court cannot tell parliament how to conduct its business purely on a hypothetical basis when the committee of parliament has tendered to comply with the future relief and the law,” she found.
In keeping with a sense of absurdist public performance Fransman did meet with Scopa in 2017 and told journalists afterwards: “Let me clear here. Cowboys don’t cry easily.”
The 2018 Western Cape High Court matter of Women’s Legal Centre Trust v President of the RSA & Others dealt with the recognition and regulation of Muslim marriages solemnised under Islamic law.
The applicants in three consolidated matters argued that this non- recognition and non-regulation violated the rights of women and children, and that the state had failed in its duty to respect, protect, promote and fulfil the rights in the Bill of Rights, in terms of section 7(2) of the Constitution. The applicants argued further that the best way to deal with this violation was through the passing of legislation and that notwithstanding judicial intervention and piecemeal litigation, the law still “bears the dent of historical discrimination”, and that judicial intervention had been confined to the facts and consequences of particular cases.
Boqwana, with judges Siraj Desai and Gayaat Salie–Hlophe concurring, recognised the piecemeal litigation on the matter and the existence of a long-standing project by the South African Law Reform Commission to investigate the legal recognition of Muslim marriages, and to draft legislation to recognise and regulate Muslim marriages in accordance with the Constitution.
“The debate should not be located on whether there is differential treatment between Muslim women and women of other religions, because this analysis may lead to a skewed conclusion that, if it is found that women in other religions are in the same boat as women in Muslim marriages owing to the fact that no religious marriages are recognised per se, no discrimination has been established and hence no violation of rights. That view may be parochial as it may lose the historical context of systemic violation of the rights of Muslim women. It can also not be suggested that just because no recognition is afforded to marriages concluded in terms of religion per se as contemplated in s 15(3), Muslim marriages are not entitled to protection,” she held.
Mabindla-Boqwana found that it was appropriate to compare women in Muslim marriages with those in civil and customary marriages, and to compare Muslim women and Muslim men.
She found that while the disadvantageous position of Muslim women, especially those in monogamous marriages, had been ameliorated in many respects, there was “still a gap with regard to non-recognition that affects women, not only in polygynous marriages.”
The applicants, according to Mabindla-Boqwana had successfully proved discrimination and that there was little or no protection for women in Muslim marriages on their divorce — and that their children, were likewise unprotected. She also found that, despite protections provided by the courts extending consequences of different statutes to spouses in Muslim marriages, “[v]ulnerabilities still exist.”
Boqwana held that various Acts of parliament cited by the respondents had not been designed to address discrimination against Muslim women and children and considered the question of whether the state was obliged to enact legislation against the context of its international obligations:
“South Africa has committed itself to take appropriate and reasonable measures to eradicate discrimination against women in marriage and family relations. Some of these conventions require enactment of legislation by member states to give effect to equality rights of women and children.”
Boqwana found that directing the executive to draft legislation would not “pre-empt a democratic process in Parliament” but would merely require “the executive to remedy an unconstitutional position, whilst acknowledging that the members of Parliament may exercise their democratic mandate.”
An order was made that the state was obliged to introduce legislation to recognise Muslim marriages as valid marriages and to regulate the consequences of such recognition. It was declared that the President and cabinet had failed to fulfil their constitutional obligations, and that such conduct was invalid. The President, Cabinet and Parliament were directed to rectify this failure within 24 months of the judgment being handed down in late 2018. If legislation was not enacted within 24 months, the order provided that a marriage in terms of Sharia law could be dissolved in accordance with the Divorce Act, until the required legislation was introduced.
Since being permanently appointed as a judge in the Western Cape High Court judge in 2013, Mabindla-Boqwana later became a judge of the Competition Appeal Court in 2017 and has taken acting stints at the SCA from the end of 2020 to 2021.
The 48-year-old Mabindla-Boqwana holds a B.Proc (1996) and an LLB (1998) from the University of the Witwatersrand. After working as an attorney for several years she joined AngloGold Ashanti as labour law counsel in 2000. In 2005 she appeared to have a short stint trying her hand at business with directorships in Nolwazi Investment Holdings (Pty) Ltd t/a Lwazi Consulting (2005) and Hluma Business and Labour Services (Pty) Ltd (2005 – 2007).
She returned to the legal field as an attorney in 2008 during which she spent acting stints in the Labour Court (one term in 2011, two terms in 2012). In 2013 she acted for the entire year at the Western Cape High Court before being appointed permanently to that Bench at the end of that year.
April 2021 Interview
April 2021 Interview Synopsis
A significant part of Western Cape High Court judge Nolwazi Mabindla-Boqwana’s successful interview for a position at the Supreme Court of Appeal (SCA) centred on customary law, and her use of an indigenous language to pen an additional version of an appellate court judgment.
This was for her majority judgment after a full SCA Bench heard the appeal against conviction and sentencing in the assault case involving former Nelson Mandela Bay municipal councillor Andile Lungisa.
SCA president Mandisa Maya, noted that Mabindla-Boqwana had “made history” by writing the judgment “in your mother tongue” and asked the candidate to reflect on the motivation and significance of this.
Mabindla-Boqwana said she was “inspired” by Maya herself, who had written a judgment in isiXhosa which she “admired” and felt it was important to do this because “legal language has to be developed in these [indigenous] languages” to ensure proper “access to justice”.
Mabindla-Boqwana later said she believed that if the litigants and judge and all others involved in a case understood one indigenous language, then it would be beneficial for proceedings to be carried out in that language.
She added that an English version of the judgment remains available. While mindful of the costs to translate the record if the matter was appealed, Mabindla-Boqwana nevertheless felt this would be outweighed by the access to justice it allowed and the benefits it would have in developing the law, and even indigenous law, in South Africa. This, she said, was what the Constitution prescribed.
The commission also quizzed Mabindla-Boqwana on her findings which related to a “test-case” which challenged the Legal Practise Council which has recently come into force to provide oversight for both the attorneys and advocates professions.
Regarding questions about transformation within the legal profession, Mabindla-Boqwana noted the high number of female lawyers who graduate from law school, are “admitted in numbers” and “yet we never see them in court?”
“Society is still not trusting of women and there is a reluctance to give them work,” she told the commission. She said clients needed to be “educated first” and pointed a finger at government and business who litigate the most in South Africa but very rarely brief female advocates.
Mabindla-Boqwana was also tested on her understanding of concepts like judicial over-reach and whether judges can make law. To the former, she responded that judges need to be mindful of “usurping the roles” of the other two arms of government (as an example, telling the executive what to build and what to spend on that build). To the latter, she said while judges can’t draw up legislation they can “write judgments which change the course of the law”.
Appearing bubbly and effervescent with a demonstrable passion for the law, Mabindla-Boqwana seemed to have little trouble in charming the commission during an interview as smooth as a a freshly shaved chiskop.
October 2016 Interview
October 2016 Interview Synopsis
Eminently qualified and evidently sharper than a stepping razor, Western Cape high court judge Nolwazi Boqwana appeared to have won over several members of the Judicial Service Commission (JSC) by merely walking in the door — a response that appeared unnerving when judging the response from an all-male quarter of the room.
This response caused ANC parliamentarian Mathole Motshekga to quip about her “interpersonal relations”: “I can see you are doing very well on that side,” he said. Whatever leeriness portrayed could not detract from Boqwana’s qualifications and experience — which seemed apparent to the JSC during an interview that lasted about ten minutes.
Boqwana was quickly asked to list the attributes that would make her successful in the job: she is “hardworking”, “thought through judgments”, “believes” she is a “patient person” and had gained further training to go with the “exposure” to competition matters as a lawyer.
Asked by commissioner Narend Singh if she had any advice for young black women, Boqwana said she had given several speeches to “women formations” and legal bodies because she wanted aspirant black female judges “to know that it is possible for young women to be a judge in specialised areas”.
