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Judge Susannah Cowen SC

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Judge Susannah Cowen October 2024

Capacity: Judge
First appointed as a judge: January 2022 (Gauteng, seconded to Land Claims Court)
Gender: Female
Ethnicity: White
Date of Birth: April 1971
Qualifications: BA (1992) LLB (1994)(UCT), BCL (1999)(Oxford, UK)

Key judgments:

Candidate Biography (updated August 2024):

Judge Susannah Cowen is a judge of the Gauteng High Court, seconded to the Land Court. She currently acts as the Deputy Judge President of the Land Claims Court, and will act as such until October 2024.

While one wishes that all judges were academics at heart, it’s not often the case that they are. Judge Cowen is a rare breed in the way that she brings her academic mind to bear on her judicial work.

In the reported case of Copenship Bulkers – a rare shipping and admiralty law case before the landlocked Gauteng High Court – Cowen was called to decide whether courts have the power to rule on issues that have been rendered of ‘academic interest’ or moot due to an appellate court judgment. Referring to Constitutional Court authority, she found that the interests of justice require that the court exercise a discretion to rule on a matter that has been rendered moot, academic, or of no practical effect to the parties immediately before the court. Referring to the issues in Copenship Bulkers, she found that there are discrete questions of law that arise in the case that would affect the powers of the sheriff of the court, the interpretation of the Admiralty Jurisdiction Regulation Act 105 of 1983, and shipping and admiralty law generally, therefore the interests of justice required that she rule in the case.

The daughter of former UCT law Dean and Professor Denis V. Cowen, and an academic juggernaut in her own right, Cowen wrote the essential monograph on judicial appointments in South Africa, titled ‘What qualities do we expect in a South African judge?”.

The monograph addressed a unique gap in the South African literature on judicial appointments and proposed some thoroughgoing reform to make the process transparent and effective. Some of those reforms would be taken up by the Judicial Service Commission over the course of the next several years.

Prior to her joining the bar as an advocate, Cowen worked on the Legislative Monitoring and Advocacy Project of the Human Rights Committee (1995-7) and a law clerk to Chief Justice Arthur Chaskalson at the Constitutional Court (1999-2000).

Judge Susannah Cowen practiced as an advocate at both the Cape and Johannesburg bars for 20 years from 2001 to 2021 and was awarded senior counsel status from 2018. Her practice largely focused on constitutional and administrative law, with a significant chunk focused on land and property law. She also served a stint at the Legal Resources Centre’s Constitutional Litigation Unit, including acting as director thereof.

From 2018, Cowen held several stints as an acting judge before her permanent appointment in January 2022. She is substantively appointed as a judge of the Gauteng High Court but is one of a small crop that has been seconded to the Land Claims Court in anticipation of the court being refashioned into the Land Court. She was also recently appointed to serve on the Land Claims Court Rules Committee of the Rules Board.

As a judge of the Land Claims Court, Cowen has written several groundbreaking judgments.

In Mahosini Royal Family she held that the forced amalgamation of tribes or clans under the Black Administration Act 38 of 1927 resulted in the dispossession of land rights due to racially discriminatory laws and practices. This is vital, as it brought the Mahosini Royal Family within the protection of section 25(6), entitling them to restitution or equitable redress for the land they lost as a result of the establishment of the Gazankulu bantustan in what is now the Limpopo province.

In Moladora Trust, Cowen dealt with the common, racially-charged conflict over livestock grazing rights between landowners (who are often white) and land occupiers under the Extension of Security of Tenure Act 62 of 1997 (ESTA) (who are often black). The issue in that case was whether the ESTA grazing rights protections apply when a landowner terminates such grazing rights through reasonable notice. Such a termination meant that the ESTA occupier had to remove their cattle. Judge Cowen found that, in light of the historical connection between land and cattle dispossession, the ESTA grazing rights protections apply. She held that the removal of grazing rights effectively amounts to an eviction, which is against the spirit of ESTA’s protection.

This was a novel decision and has already started a debate in the legal and agricultural communities. AgriSA, which represents the interests of large commercial farmers, has come out strongly to condemn the judgment, and has already offered the landowner in the case funding to challenge judge Cowen’s decision on appeal. AgriSA argues it is a threat to commercial agriculture and national food security. The Women on Farms Project argues that farmworkers need livestock to survive as the current minimum wage is not enough, and there’s a systemic attempt [by landowners] to prevent farmworkers from keeping livestock. They therefore support judge Cowen’s judgment.

Since her appointment as a judge of the Land Claims Court, Cowen has been intimately involved in reforms to improve the operations of the ailing court. She led the auditing of old land cases, and the digitisation process for the court’s registry, to allow for case flow management for restitution, labour tenants and land claim cases. She was also active in the legislative process leading to the finalisation of the Land Court Bill of 2021. She has also assisted the previous Acting Judge President with fostering mutual relations with the Ministries of Justice and Agriculture, and Legal Aid SA, and also attending the opening of Parliament in 2023. In an attempt to bolster the research capacity of the court, Cowen recruited legal research interns at no cost to the court, and provided training to advocate members of PABASA on land cases and land law.

While Cowen may easily be regarded as a maverick, having earned her stripes in the academic, practice and judicial realms of the broader legal profession, the JSC will likely quiz her on her ambitions. In the past, the JSC has taken a conservative view with candidates who put themselves forward for judicial leadership positions soon after their appointment as judges. However, the unique challenges of the Land Claims Court may need a younger leader, brimming with fresh ideas, to deliver on the vitally important mandate of an institution meant to serve some of the poorest members of South African society. In light of the multitude of leadership duties and activities undertaken by Cowen, and the commendable judgments written by her, it will be interesting to see whether her relative lack of experience on the bench results in her not being appointed, more so because she is the current Acting Deputy Judge President of the Land Claims Court.

April 2024 Interview:

April 2024 Interview Synopsis:

In what was quite a relaxed interview for the position of Deputy Judge President of the Land Claims Court, Judge Susannah Cowen was asked by the JSC about what her vision is for the Land Claims Court. In providing her vision and goals, she set out the various problems the Land Claims Court has faced and is facing. She highlighted the fact that in her short time at the Land Claims Court she has been intimately involved in leadership duties and has been at the forefront the progress made by the Land Claims Court.

One of Cowen’s main objectives with the Land Claims Court is to see through the historical cases initiative which she implemented, and to foster a more effective collaboration and dynamic with Legal Aid SA to allow for land claims to be brought to court by those who are normally unable to do so.

The various activities undertaken by Cowen, particularly whilst being seconded at the Land Claims Court, and the notable judgments made by her were commended as being impressive, and as evidencing her suitability for the position as Deputy Judge President, however one concern was her relative lack of experience on the bench, especially in light of the more experienced candidates for the position.

October 2021 Interview:

October 2021 Interview Synopsis:

In Judge Susannah Cowen’s October 2021 interview by the JSC for a position on the Gauteng Division of the High Court, with secondment to the Land Claims Court, she was quizzed on why she considered herself well-placed to be a judge on the Land Claims Court. She highlighted her experience as an advocate representing clients before the Land Claims Court, her experience working with rural communities in both her private practice as an advocate and at the Legal Resources Centre. Asked for ideas to strengthen the Land Claims Court with the imminent promulgation of the Land Court Bill of 2021, Cowen said,

“I would like for us to think ambitiously and creatively about the Land Court…We should be able to reimagine the court as a symbol of access to land justice… I imagine the Land Court as symbolically similar, but perhaps not as ambitious, as the Constitutional Court… We should be thinking more about the role of indigenous languages in that court perhaps more than any other.”