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Judge Namhla Thina Siwendu

Judge N T Y Siwendu_0164

Capacity: Judge
First appointed as judge:  January 2017 (Gauteng High Court, Johannesburg)
Further appointment:  October 2019 (Special Tribunal)
Acting appointments: Competition Appeal Court (Feb – Dec 2020, Jan – Dec 2022); Supreme Court of Appeal (Jun 2022 – Sep 2023)
Gender: Woman
Ethnicity: African
Date of Birth: July 1966
Qualifications: B.Soc.Sci (1987) B. Social Work (Hons)(1988)(UCT) LLB (1991)(UKZN) Cert (Global Faculty Development)(2010) (Penn.Uni, USA)

Key Judgments:

Candidate Bio | Updated May 2024

Judge Namhla Thina Siwendu is a judge of the Gauteng High Court, Johannesburg.

An attorney for 21 years prior to her elevation to the bench, Siwendu’s illustrious career included working as a researcher at the Centre for Applied Legal Studies at Wits University, a candidate attorney at progressive law firm Cheadle Thompson & Haysom, and later joining the South African Law Reform Commission as a commissioner.

Siwendu was a corporate law and governance specialist and has sat on the boards of a number of major Blue Chip companies.

Siwendu was one of the first black women to successfully run her own commercial attorney’s firm, Siwendu & Partners Inc. from 1996 until 2012, when it merged with Cliffe Dekker Hofmeyer Inc – one of the ‘Big 5’ law firms in SA.

In 2015, Siwendu formed part of the National Forum for the Transformation of the Legal Profession, established to facilitate major reforms in the legal profession and was the forerunner to the statutory Legal Practice Council, which now governs both attorneys and advocates.

In 2019 Siwendu gave Stellenbosch University’s Annual Africa Day Lecture titled “A Mother’s Reflection on Suicide Loss in Post-Apartheid South Africa” where she told of the pain of the tragic loss of her young son to suicide.  This drew on her residency at world-renowned Professor Pumla Gobodo-Madikizela’s South African Research Chair in Violent Histories and Transgenerational Trauma at Stellenbosch University.

After her appointment as a Gauteng High Court judge in 2017, Siwendu served on several committees responsible for the daily operations of the court. She was one of the founding members of the revitalised Johannesburg Commercial Court, which sought to claw-back from private arbitration some of the large and complex commercial law cases necessary for the development of the law.

In 2019 Siwendu was seconded by President Ramaphosa to the Special Tribunal, which is a specialised tribunal set up to adjudicate cases that seek to recover assets lost to the State through corruption and maladministration. She wrote the judgment in

Siwendu holds a B.Soc.Sci (Honours)(Social Work) degree from the University of Cape Town and an LLB from University of Natal (now UKZN). She is an accredited arbitrator with the Independent Mediation Services of SA, and holds a Global Faculty Development certificate from the Wharton Business School from the University of Pennsylvania, USA.

Siwendu’s initial experience in the appellate courts was earned from her stint at the Competition Appeal Court (Jan – Dec 2022) where she wrote the judgement in  Competition Commission v Coca Cola Beverages Africa, which deals with the Competition Tribunal’s review powers. This case concerned a breach of the merger conditions of a merger (between two bottling companies within the CocaCola group) set out in section 12A(3) of the Competition Act. In terms of the merger conditions, the new entity  (a merged CocaCola) could not retrench workers within five years of the merger.  However, 368 employees were retrenched. The Competition Commission prosecuted CocaCola in the Competition Tribunal alleging that the company had breached the merger conditions. CocaCola argued that the employees were not retrenched due to the merger, but due to the sugar tax and touch economic conditions, among others.  The Tribunal was satisfied with these reasons and found that CocaCola had not breached the merger conditions.

On appeal to the Competition Appeal Court, Siwendu had to decide whether the Tribunal had powers to review the merger conditions, and whether CocaCola had breached the merger conditions.  She confirmed that the Tribunal did have review powers in terms of section 27(1)(c) of the Competition Act. However, she reversed the Tribunal’s finding that the retrenchments were not related to the merger.  Siwendu’s decision was reversed on appeal of the Constitutional Court.

From June 2022 to October 2023, Siwendu served as acting judge in the Supreme Court of Appeal, further bolstering her appellate experience.

In BF v RF the court dealt with the disputed interpretation of an antenuptial contract to assets and determine which assets are accounted for in the reckoning of the accrual contract. This is an interesting legal question as cases have not been clear as to what the law is, in this context. The issue of contention regarded shares (and therefore it concerned an asse t class that is still to be acquired in the future), and whether assets and liabilities both tangible and intangible can form part of the accrual calculation, and both the majority and the dissenting judgements confirmed that it does and that this right can be extended to both parties including that of the party who has the right of first recusal – therefore someone deciding what should and should not form part of the estate.

Her dissent centred around the fact that the case was that context and the factual background surrounding the intentions of the contracting parties and thus the absence of a factual matrix limits the purpose of the court and the exercise expected from them. and it is inappropriate to do so as there are policy issues that surround the interpretation of the meaning of assets. Because of this, she argued that the matter be reffered back to the court a quo.

As an attorney, Siwendu was member of the KwaZulu-Natal Law Society (1996 – 2013) and the Black  Lawyers Association (1998 – 2017). As a judge, Siwendu is a member of the Internation Association of Women Judges’ SA chapter (from 2017), a trainer with the African Regional Judges Forum, and have served on numerous committees in the Johannesburg High Court.

SCA Interview Synopsis | October 2023

Gauteng High Court Judge Thina Siwendu had a pleasant, if not totally delightful interview.

When Chief Justice Zondo asked her about the two types of discretion appellate judges may exercise, Siwendu charmingly admitted that she has been watching the previous interviews and that she expected this question. Referring to a case she had previously adjudicated, Siwendu explored the kinds of discretion, including the wider ‘true’ discretion versus narrower forms of discretion, including the limited discretion of appellate inquiring into the facts of the case.

A grumpy Petse stated that he does not understand why Siwendu listed certain cases as significant in her application bundle when “certain cases here do not seem to achieve this [significance]”. Siwendu confidently explained the significance of several of the cases she listed but conceded that there are other cases that should not actually have been added to the bundle.

Petse prefaced his last question by saying that the SCA’s style required short and concise judgments that do not delve into the facts or unrelated issues, and asked if Siwendu would be able to deliver on that mandate? “I am a work in progress,” Siwendu said,”I have delivered 8 judgments and my writing style changes and develops as I learn,” to assure the JSC that, should she be appointed, she will produce judgments of the writing style required by the court. She was not appointed.

High Court Interview Synopsis | October 2016

Asked by justice minister Michael Masutha why it was so difficult to attract and keep black women in positions within the judiciary, Siwendu suggested that “at the centre of [the reluctance] is money” as people were unwilling to give up lucrative careers or sign up to the Constitutional project and vision for South Africa.

Siwendu admitted that she sometimes struggled to write judgments, but that the delays did not accord with her personal values. She was also probed on her role at the SA Law Reform Commission and whether gender played any role in the adjudication of cases. She responded that it had and cited the Volks v Robinson matter which came before the Constitutional Court.

The matter, which dealt with the rights of the surviving spouse under the Maintenance Act, saw judges Yvonne Mokgoro and Kate O’Regan write a dissenting judgment which took a contextual approach in interpreting the Act’s provisions, while the majority judgment (by a majority male court) followed a contract law-based interpretation of the provisions.

Interview Synopsis:

Asked by justice minister Michael Masutha why it was so difficult to attract and keep black women in positions within the judiciary, Siwendu suggested that “at the centre of [the reluctance] is money” as people were unwilling to give up lucrative careers or sign up to the Constitutional project and vision for South Africa.

Siwendu admitted that she sometimes struggled to write judgments, but that the delays did not accord with her personal values. She was also probed on her role at the SA Law Reform Commission and whether gender played any role in the adjudication of cases. She responded that it had and cited the Volks v Robinson matter which came before the Constitutional Court.

The matter, which dealt with the rights of the surviving spouse under the Maintenance Act, saw judges Yvonne Mokgoro and Kate O’Regan write a dissenting judgment which took a contextual approach in interpreting the Act’s provisions, while the majority judgment (by a majority male court) followed a contract law-based interpretation of the provisions.