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Judge L Windell

Candidate Biography | updated May 2024

Judge Leonie Windell is a judge of the Gauteng High Court, Johannesburg.

Leonie Windell’s judicial career probably breaks many widely-held stereotypes about the competence of magistrates to be superior court judges. She holds the rare distinction of being the only judge to have adjudicated two complex class action cases, which are still novel in South African law.

The case Various Parties v Anglo American (“the Kabwe case”) is a class action law suit by parents of child victims of lead poisoning claiming compensation from mining giant Anglo American’s for its lead mining operations in the Kabwe district of Zambia from 1906 to 1994.

Lead is a mineral used in paint, fuel, plumbing and ammunition that is extremely toxic to human beings (especially children) and may lead to brain damage and even death. Kabwe district in Zambia has the world’s highest incidents of lead poisoning in children under three years old.

The 11 applicants in the case all grew up around Kabwe and were tested to have elevated levels of lead in their bodies, and therefore sought to hold Anglo American responsible for this. Windell had to determine whether there was sufficient evidence to show that all the victims were affected by the same exposure from Anglo’s Kabwe mine, and therefore certify them as a ‘class’.

Besides the complex scientific and medical data required to be analysed, the case also had jurisdictional complexities: the applicants were citizens of Zambia, suing a South African company, in South African courts, for incidents that occurred in Zambia, over a period of 47 years, and using both the substantive law of Zambia and the procedural law of South Africa.

After analysing the complexities of the law, and the alleged facts filed on behalf of over 140 000 potential victims, Windell found that, even though the claimants had legal standing to bring the class action, there was insufficient evidence to certify the class. She dismissed the claim on that basis. In addition, she would that a trial based on the facts presented would be unmanageable. She said:

“An unmanageable class action is one that would take an extremely long time to be completed, if it is completed at all. The applicants effectively concede unmanageability. The applicants claim in argument that it would take ten years for their legal team merely to take instructions from every member of the proposed classes. If this is so, it would take much longer for a South African court to assess the claim of each class member in the second stage. It bears emphasis that an unmanageable class action is not only adverse to Anglo’s interests: It undermines the applicants’ access to justice.”

Windell’s judgment drew both praise (mainly from business) and criticism (mainly from activists) from around the world. The applicants have sworn to appeal it.

Windell has previously sat as one of three judges in the so-called silicosis class action case, Nkala v Harmony Gold. In that case, dozens of mineworkers sued several large mining companies (including Anglo American) for infecting them with silicosis (a form of tuberculosis arising from inhaling chrystalline silica dust that sticks to the lungs) in mining operations since 1925.

Although the full bench certified the class and authorised the class action trial, Windell dissented only on the issue of the transmissibility of the claims. She found that South African common law does not allow (and the majority judgment had not made out sufficient cause for development of the common law to allow) for claims of physical damages (such as pain & suffering disablement and reduced life expectancy) to be transferrable before the close of court pleadings.

However, Windell found that in the limited circumstances of a class action of this nature, and in light of the spirit, purport and objects of the Bill of Rights, transmissibility of claims should be allowed.  This means that, unlike the majority judgment who allowed for transmissibility of claims in all cases, Windell found that the claims by deceased mineworkers for physical damage from silicosis could be transferred to their children, who would proceed with the class action. An appeal against the judgment was dismissed by the SCA on technical grounds.

Born in Lady Frere in the Eastern Cape, Windell graduated with a B.Iuris law degree from the North West University (then the Potchefstroom Universiteit vir Christienlike Hoer Ondervys) in 1989.

She then immediately started her legal career as a district and regional court prosecutor. She would continue in that role for the next four years, while also doing her LLB law degree part time through Unisa – which she obtained in 1994.

Windell was then elevated to the bench as a district magistrate from November 1993, trying mainly criminal cases for 2 years and civil cases thereafter. She would stay in that role for the next 20 years until her appointment as a judge of the High Court in Johannesburg in 2013.

As a judge Windell has delivered over 400 judgments (with over 11 reported) on areas such a tax law, family law, equality law, constitutional law, civil procedure and some criminal law. Of the ten  judgments of hers that have gone on appeal, only 5 managed to successfully overturn her decisions.

Windell has acted as a judge of the Supreme Court of Appeal for three terms since June 2022.

While at the SCA she wrote the judgments in Commissioner: SARS v Airports Company South Africa, a major tax judgment concerning the amendment of an objection filed against an additional tax assessment. ACSA had objected to SARS’s assessment decision not to allow a tax deduction as corporate social investment (CSI), and sought to amend its objection – except the tax court rules did not allow, and thus had to rely on the uniform rules of court. The Tax Court found this to be permissible, ruling in favour of ACSA. On appeal to the SCA by SARS, Windell analysed the architecture of the tax dispute resolution system and found that the uniform rules of court do not permit such an amendment to an objection, and upheld the appeal.

“An objection is therefore part of the pre-litigation administrative process and is not a pleading. It is also not a document filed in connection with judicial proceedings envisaged in terms of Uniform rule 28(1).

The judgment was reported in the law reports and received wide support from the tax community.

Windell was one of the first cohort of magistrates to receive social context training from the Law, Race and Gender Unit at the University of Cape Town in 1998. She completed several training programmes on topics such as advancing equality in terms of the new Bill of Rights, social context in judicial decision-making, judicial skills for efficiency.  After undergoing SAJEI’s aspirant judges course and mentorship between 2010 and 2011, she served as an acting judge for several terms until her permeant appointment in 2013.

She has since gone on to be a training and mentorship specialist in her own right.

Windell lectured candidate attorneys on the LEAD vocational court in 2006, 2008, and 2013, lectured magistrates and new judges on the SAJEI on various topics of trial and motion work in both civil contexts, and served as an official trainer in the Aspirant Judges course in 2023.

A member of the SA Chapter of the International Association of Women Judges since 2009, Windell served as the provincial co-ordinator for North West (2010-2013), for Gauteng (2015 – 2018), and assistance vice president: publications (2017 – 2018). She has been an active member of SAC-IAWJ’s mentorship programme for women students and new graduates.

If appointed to the Supreme Court of Appeal, Windell will only be the third magistrate to be permanently appointed in that court’s 114-year history.

SCA Interview | May 2024

In May 2024 Judge Windell was interviewed by the JSC for a position on the Supreme Court of Appeal.

Judge Windell’s interview went well. In explaining her experience of her acting stints at the SCA, she compared it to moving to Johannesburg for the first time. She felt privileged and eager to prove that she deserved to be there. She found it intellectually challenging, and loved the experience. She “loved” the fact that everyone there was from different provinces, yet working hard. She said it was an environment where you could ask questions, and people helped each other. She said she had made life-long friends from that appointment.
Judge Windells interview was unsuccessful