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Judge Zeenat Carelse

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Capacity: Judge
First appointed as a judge: 2009, (Gauteng, Johannesburg)
Further Appointments: Supreme Court of Appeal (2021)
Gender: Female
Ethnicity: Coloured
Date of Birth: October 1966
Qualifications: BA, LLB (1992) (UKZN)

Key judgments:

Candidate Bio: (Updated April 2024)

Judge Zeenat Carelse is a judge of the Supreme Court of Appeal.

In a previous life, Zeenat Carelse worked as insurance claims clerk in 1987 before taking on the banking sector as a junior banker in 1990.

After completing her BA and LLB degrees at the then University of Durban Westville (now UKZN), she started her new life in law: a public prosecutor in 1994, and the district magistrate of Johannesburg and later Mitchell’s Plain from 1998 to 2004. In 2004, she served as a regional court magistrate in the sprawling East Rand township of Tembisa.

From 2008 Carelse started acting as a judge in the Gauteng High Court, dealing with serious crime and largely family law cases.

Upon her permanent appointment as a judge in 2009, Carelse almost immediately took up a secondment to the Land Claims Court, where she stayed from time-to-time over the course of 12 years.

As a land court judge Carelse has written some important judgments.

In Florence (Dodgen) v Broadcount Investments (Pty) Ltd she was confronted with four major issues in a claim for the restitution of land taken from the Florence family in 1970:

First was the loss suffered by the Florence family as a result of the dispossession of their rights and whether such loss would equate to just and equitable compensation, calculated at the time of dispossession;

Secondly, the appropriate method used to calculate the value of the 1970 loss into present day value;

Third, the amount of financial restitution the family should receive as consolation due to the hardship they suffered as a result of the dispossession; and

Fourthly, whether the the Governement could be ordered to pay for the costs relating to the erection of a memorial plaque.

After establishing that the Florence family had been dispossessed, Carelse then held that, according to the evidence, the purchase price had been paid in full at the time of the dispossession. She found that “when interpreting a constitutional right such as the right to restitution the interpretation should be generous rather than a legalistic one, aimed at fulfilling the purpose of a guarantee and securing for individuals the full benefits of their constitutional rights.” The “inescapable conclusion” was that equitable redress for the family should be the amount of their 1970 financial loss, escalated to its present day value” In calculating this Carelse referred to the Farjas judgment, a case which determined that the Consumer Price Index (CPI) adequately caters for change in the value of money over time. The CPI was used to determine the value of the loss of the land over time. Regarding the third issue, of a consolation payment or solatium, Carelse emphasised its symbolic nature and found further that “[t]he Florence family life was disrupted and the family was split up…the Florence family suffered emotionally, financially and psychologically by the forced removal”.

The claimants were thus awarded R10 000. Carelse declined to award the costs of a memorial plaque, on the basis that those costs had been agreed to between the plaintiff and defendant in a private settlement agreement and that the court lacked the jurisdiction to make such an order.

The matter was taken on appeal to the SCA and then the Constitutional Court. Considering the appropriateness of the CPI as a measure of the change of value of money over time the SCA found Carelse acted judiciously and held that,

“[i]t has already been found in Farjas that the Land Claims Court is entitled to rely upon the CPI to determine changes in the value of money, and we are bound by that decision. In these circumstances it cannot be said that the LCC misdirected itself in adopting the same approach.”

The appellate court found, however, that there was no basis for the conclusion that the LCC had no jurisdiction to order the government to pay the costs for the erection of a plaque and awarded R50 000 for this purpose.

The majority of the Constitutional Court held that the use of the CPI as a measure for the change in monetary value over time was correct. It further concluded that the Carelse’s LCC judgment was correct in its finding that the court had no power to order the government to pay for the erection of a memorial plaque, thereby reversing that part of the SCA’s decision.

In 2021 Carelse was appointed to the Supreme Court of Appeal, where she has built up a reputation as a specialist in land-related disputes. She wrote the unanimous judgments of the SCA in Chief Sinthumule and Stow, but lost the majority vote in Nimble Investments, a case dealing with whether a land occupier in terms of the Extension of Security of Tenure Act who erects building structures without the consent of the landowner breachers the relationship between them, establishing grounds for an eviction. Carelse found that it didn’t, while the majority found that it did.

Carelse spent 6 months between June and December 2020 as the acting judge president of the Johannesburg seat of the Gauteng High Court, running the busiest court division in the country. She was one of two candidates who received wide received wide supoo

Carelse was one of the founding members of the SA Chapter of the International Association of Women Judges, and served in its provincial leadership since 2004. She is also a network judge for the Hague Conference on Private Internationational Law.

Her appellate experience in the SCA, coupled with her long experience as a magistrate, plus the decade she spent in the Land Claims Court place Carelse as a frontrunner for the job of judge president of the Land Court. Unique among all candidates, she also has experience in running a busy high court division. However, the JSC may wish to probe this experience further. It’s far from a done deal.

April 2024 Interview:

April 2021 Interview:

April 2021 Interview Synopsis

The sense that what one sees is what one gets with South Gauteng High Court Judge Zeenat Carelse came across loud and clear in her successful interview for appointment to the Supreme Court of Appeal (SCA).

What one gets is a tenacious, effervescent, enthusiastic human who is not afraid to keep learning, to feed an infectious love of the law and its role in creating a more equal society.

The interview, which lasted just over an hour-and-a-half started with SCA president Mandisa Maya asking questions about some of Carelse’s judgments, including S v Khanye, which she described as “seminal”.

In S v Khanye, Carelse extended the doctrine of common purpose to include gang-rape. She said she had been troubled by the fact that if only one accused was in court — as in this case — gang-rape would not be the appropriate charge, likewise the sentence would be affected.

“This troubled me because the message was wrong,” said Carelse, noting that the survivor had testified that she had been gang-raped. She told the commission that she had researched precedent and “took the legal point” from S v Legoa and “once jurisdictional fact was established then the sentencing regime came into effect… The difference between [a] life [sentence] and ten years is huge”.

Maya also asked Carelse about her 2013 high court judgment Nono Cynthia Mañana v Presiding Officer of the Children’s Court, Krugersdorp & Others which allowed for foster-care grants to be accessed by grandparents caring for their orphaned grandchildren.

Noting that HIV-Aids had robbed an entire generation of children of their parents, and added the burden of care to their grandparents, who very often had very little money, Carelse said: “Being a judge is a very lonely job… But when you do something like that to uplift people, to create a better community for children, it does make a difference… You do feel good. Otherwise it’s a lonely job.”

On two occasions Carelse was asked about the phenomenon of a so-called “Top Six” judges at the SCA which were reputed to be aloof, and often rude, to other judges. This because of a perception that other judges were either not working hard enough or not demonstrating the intellectual and legal rigour required.

Carelse said she had, generally, been given a “warm welcome” and that aside from one “unpleasant experience with a senior colleague” regarding judgment writing, which President Maya had resolved to her satisfaction, she had no complaints.

She said she had noticed a definite change of atmosphere at the SCA during her most recent acting stints at the SCA (at the end of 2020 and the beginning of this year) when compared to her 2018 acting stint.

On her time spent at the Land Claims Court, Carelse said she had never had a judgment overturned in the 12 years she had worked there. When asked whether the Constitution currently allowed for expropriation without compensation, Carelse answered in the affirmative.

Later she was asked whether it would make a difference to South Africa’s stuck-in-the-mud land redistribution programme, to make the provision for uncompensated expropriation more explicit with a Constitutional amendment.

While Carelse saw nothing wrong with doing so, she told the JSC that there were more pressing structural and administrative issues that needed addressing, so as to speed up land reform. Including addressing the under-resourcing of the Land Claims Court.

On her approach to adjudicating and writing judgments, Carelse said: “I’ve always been open to bettering myself. I never turned down a course available to a judge… and did whatever I had to do to up my skills… In Joburg [at the South Gauteng High Court] we sit and discuss matters in the tea-room. It’s the best job in the world because you are learning every day. My father used to say: ‘My child, if you educate yourself, you liberate yourself.”