Capacity: Magistrate
First Appointed as Magistrate: March 2003 (KwaZulu-Natal)
Gender: Male
Ethnicity: Indian
Date of Birth: March 1968
Qualifications: BA(Law)(1991) LLB (1994)(UKZN)
Candidate Bio (Updated September 2024)
Mr Irfaan Khalil is a Magistrate in the Pinetown Magistrates Court, KwaZulu-Natal.
Mr Khalil boasts more than two decades of experience as a magistrate in various Magistrate Courts in KwaZulu-Natal, beginning in 2003. Currently, he serves as Acting Chief Magistrate of the Verulam District Court, a position he has held since 2018. This has no doubt exposed him to a wide variety of matters spanning multiple fields of law.
Mr Khalil has also acted as a judge in the KZN High Court at both Durban and Pietermaritzburg Divisions, for a total of 25 weeks. When the infamous matter of ANC v Sparrow came to the Equality Court, it was Khallil who heard the case. In the post-1994 social landscape of South Africa, the weight of racial baggage continues to hang over the heads of individuals and institutions, as we struggle to reconcile an abhorrent past of racial discrimination and oppression with constitutional promises of equality and dignity. It was within this historical context, cognisant of the continued practices and utterances of racist abuse and dehumanisation, that Khalil framed his judgment.
Penny Sparrow’s racist Facebook barrage seared itself into the collective memory of South Africans, not only because it was widely shared nationally and internationally, but because it was a reminder of the ubiquity and normalisation of racism within society. The widespread condemnation of Sparrow’s derogatory and unapologetic sentiment likely contributed to her being unable to secure legal representation. In her absence, and despite her daughter’s application for postponement, Khallil found there to be no compelling reasons to grant such a postponement and directed that proceedings continue.
It was alleged that Sparrow’s comments constituted hate speech in terms of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination act 4 of 2000. Khalil agreed with this contention, finding that:
The words posted by the respondent directly invokes enmity and ill will towards black people simply because they belong to a particular race, ethnic origin or colour.
He held further that Sparrow should be liable for the widespread sharing or republication of the post as she ought reasonably to have known that this would have occurred given the nature of social media.
Khalil’s judgment wrestled with the tension between the constitutional right to freedom of expression in section 16 and the section 10 right to human dignity, which is mediated by the section 16(2) exception to free expression; hate speech. The manner this was approached, however, was criticised by Dr Marelize Marais in her article ‘A constitutional perspective on the Sparrow judgements’ for being “disappoint[ing] in its conceptual and contextual analyses.” Marais argues that Khalil’s approach did not explore the above tension with sufficient nuance, opting instead for a “generalised, unqualified labelling of all forms of hurtful speech related to group characteristics, as “hate speech”.”
Khalil ordered that Sparrow pay costs, as well as R150 000 in damages paid to the Oliver and Adelaide Tambo Foundation. In considering the appropriate remedy, Khallil highlighted that the amount was not to be conceived of as a form of revenge.
Elsewhere, and somewhat similarly, Khalil posited that the imposition of sentencing in a criminal trial should not be an act of revenge, but should be the:
Culmination of a process having proper regard to the personal circumstances of the appellant, the nature of the offences convicted of, the surrounding circumstances relating to the shooting, the actions of the appellant as well as the interests of society.
This comes from Mchunu v S, where the High Court heard an appeal from the Magistrates Court relating to the sentence imposed on the appellant for the crime of murder. Here, Khalil concluded that the Greyton Regional Magistrates Court, in imposing its sentence, had misdirected itself in considering the factors mentioned in the above quotation. Upon consideration, there existed substantial and compelling circumstances justifying a lesser sentence; Khalil reduced the sentence from 15 years to 10 years for the counts of murder and attempted murder. Khalil located the mitigating factors in the fact that the appellant had not directly intended to kill the deceased, aided the deceased and rushed the deceased to the hospital, paid for the funeral costs and apologised to the family.
In addition to his experience at the Magistrates Court and High Court, Khalil has been a commissioner in the Small Claims Court for 24 years and has chaired the Small Claims Court Advisory Committee. He has also presided over Magistrates Commissions on misconduct involving magistrates.
Khalil began his legal career – after obtaining his BA (Law) and LLB from UKZN – at Zohra Bayat Attorneys in 1994, where he served one year. He joined the Bar in 1995 and would practice as an advocate for just short of 8 years.
While Khalil has plenty of experience at the Magistrates Court, he has only acted in the High Court for a total of 25 weeks. It will therefore be interesting to see whether the JSC finds this experience sufficient for nomination for permanent appointment to the High Court. At 56, his age could either be an indicator of a long and fruitful career in the High Court or a sign that more acting stints would be prudent.
October 2024 Interview: Eastern Cape Division of the High Court, Mthatha
October 2024 Interview Synopsis: Eastern Cape Division of the High Court, Mthatha
Traversed in his initial discussion with Chief Justice Maya was the fact that Mr Khallil was set to be interviewed several times throughout the JSC October Interviews for various High Courts despite only having acting experience in KwaZulu-Natal.
The Eastern Cape Acting Judge President Nhlangulela was one of the first to raise his concern about Khallil’s lack of experience in the Eastern Cape questioning his experience of interacting with people from the Eastern Cape and whether he would be able to relocate.
Commissioner Notyesi, a practising attorney in the Eastern Cape, followed this theme by questioning Khallil on the specifics of the Eastern Cape Joint Practice Directives. Despite having read the directives in 2022, he was unable to sufficiently answer such a specific question even when Notyesi framed it in a practical example.
More practical questions about his knowledge on customary law were posed to Khallil by Commissioners Nonkonyana and Malema, with Malema questioning him on which law applies to a divorce of a couple who were married under customary law which at its nature is in community of property and then gets married out of community of property under civil law?
Khallil’s answer emphasised certain values such as ubuntu but failed to provided a clear answer to the question even when asked for clarity by Malema and Commissioner Ngcukaitobi SC.
Judge President Mlambo explored the idea that he has no experience in the Eastern Cape by asking him why he should be appointed to a court where he has no experience? Khallil confirmed that acting experience is important, but that he has the ability to work very hard. Mlambo asked several questions with the intention to dissuade Khallil from thinking he could parachute himself into any high court without experience. Mlambo went on to discuss the unwritten convention that “no one applies to become a judge” but instead getting recognised by your peers and nominated based on your merit.
Khallil ended his interview acknowledging his ‘misgivings’ of applying to courts where he has no acting experience. However it was pointed out by Malema that he had not correctly understood JP Mlambo and reiterated the unwritten rule to Khallil.
Mr Khallil was ultimately unsuccessful in his interview.
October 2024 Interview: KwaZulu-Natal Division of the High Court
October 2024 Interview Synopsis: KwaZulu-Natal Division of the High Court
Upon his return to be interviewed by the JSC less than 24 hours before his previous interview for a seat at the Eastern Cape High Court, it was no surprise that the interview only lasted 23 minutes and Chief Justice Maya did not have to run through his CV as she procedurally does.
The first of two people to pose a question to Mr Khallil was Judge President Poyo-Dlwati, who referred to his previous interview where he had made several admissions against his ability and readiness to become a judge. She questioned why his readiness would be different for the KwaZulu-Natal High Court? He explained that what he had stated in his previous interview was not an admission that he is not prepared to become a judge. In this response to the Judge President, Mr Khallil also withdrew his nomination for the posts in the High Courts where he has no acting experience.
In responding to the Judge President’s question about his nomination by his previous boss, Khallil explained that his boss knew him best and nominated him for this reason. He also took this moment to express gratitude to the law bodies who commented on his nomination and explained how happy he was when he was shortlisted for so many posts as; “it served as some confirmation for me that I would not have been shortlisted had the Judicial Service Commission not seen value in me”.
Commissioner Hassan was the only other commissioner to pose questions to Mr Khallil. Her questions targeted his knowledge of legal principles in the context of protest action and how his experience of being a chief magistrate will assist him in being a judge.
Ultimately, upon his return, Mr Khallil was unsuccessful.
