Current position: Judge at the Constitutional Court
Appointed: 11 September 2019
A Supreme Court of Appeal judge since 2010, Stevan Majiedt has acted at the Constitutional Court from January to May 2014 during which time he heard 11 cases. Of these, Majiedt wrote a unanimous leading judgment in one case, dissented in two and wrote a separate concurring judgment in a single matter.
While famous for being on a panel of Supreme Court of Appeal (SCA) judges who overturned the North Gauteng High Court’s culpable homicide verdict against athlete Oscar Pistorius — the SCA, instead, found Pistorius guilty of murdering his girlfriend Reeva Steenkamp — Majiedt has more interesting judgments on his CV.
These include the 2014 Constitutional Court ruling in National Commissioner of the SAPS v Southern Africa Litigation Centre. While acting at the Constitutional Court Majiedt penned a unanimous judgment which found that the South African Police Service was obligated, under domestic and international law, to investigate crimes against humanity and torture allegedly committed in Zimbabwe by state officials. The matter related to incidents of violence allegedly perpetrated against Movement for Democratic Change activists in the build-up to the country’s 2007 elections. It is considered a landmark judgment in terms of universal jurisdiction.
He unsuccessfully interviewed for a position at the country’s highest court in April 2017, during which he was pressed on the fractures at the SCA. Majiedt told the Judicial Service Commission that these were not just racial divisions and that notions of superiority, inferiority and “who belonged” in the appellate court were much more nuanced — and patronising too.
Majiedt appears to divide opinion — both in and out of the courts. He was involved in a long-running feud with former judge president of the Northern Cape, Frans Kgomo, where claims and complaints of nepotism, racism and discrimination were alleged by both sides and even filed at the JSC. It made for incendiary viewing during interviews until Kgomo and Majiedt made peace and became “the best of friends”, according to the latter during his 2017 interview.
Some of his judgments, meanwhile, have also drawn criticism from people ranging from academics to fellow judges. During Majiedt’s acting stint at the Constitutional Court, it was asked to adjudicate a matter where an arbitration award was made in favour of a property developer who was not a registered home builder.
The Housing Consumers Protection Measures Act maintains that unless an entity is registered it cannot “receive any consideration in terms of any agreement with a housing consumer in respect of the sale or the construction of a home.”
In Cool Ideas 1186 CC v Hubbard and Another the court observed that statutes had to be given their ordinary grammatical meaning, unless the literal resulted in the absurd. It held that this general principle was subject to three important interrelated riders: Statutory provisions should always be interpreted purposively; they should be properly contextualised; and all statutes had to be construed consistently with the Constitution.
The Court refused to make the arbitration award an order of court but Majiedt AJ (with Moseneke ACJ, Skweyiya ADCJ, Khampepe and Madlanga JJ concurring) nonetheless stated:
“That is not to say that a court can never enforce an arbitral award that is at odds with a statutory prohibition. The reason is that constitutional values require courts to “be careful not to undermine the achievement of the goals of private arbitration by enlarging their powers of scrutiny imprudently”. Courts should respect the parties’ choice to have their dispute resolved expeditiously in proceedings outside formal court structures. If a court refuses too freely to enforce an arbitration award, thereby rendering it largely ineffectual, because of a defence that was raised only after the arbitrator gave judgment, that self-evidently erodes the utility of arbitration as an expeditious, out-of-court means of finally resolving the dispute. … So it will often be contrary to public policy for a court to enforce an arbitral award that is at odds with a statutory prohibition. But it will not always be so. The force of the prohibition must be weighed against the important goals of private arbitration that this court has recognised.”
Justice Chris Jafta (Zondo J concurring) wrote a separate concurring judgment while Justice Johan Froneman (Cameron, Van der Westhuizen J and Dambuza AJ concurring) dissented, arguing that the Act had to be interpreted in a manner less damaging to the right to property, and for that reason would have granted leave and allowed the appeal.
The judgment was criticised in the South African Law Journal by Justice Malcolm Wallis in an article titled The Common Law’s Cool Ideas for Dealing with Ms Hubbard. Wallis argued that Majiedt AJ should have resolved the case by the straightforward application of common law principles. Instead, the article argued, Majiedt AJ created uncertainty and “cast doubt upon two long established rules that are part of the bedrock of the rule of law.” The first was that a court would not order someone to do something that is forbidden by law. The second was that an arbitrator is in the same position as a court and likewise may not, by an award, order that something unlawful be done.
Wallis argued that there was a claim for unjustified enrichment, but that the majority held that such a remedy was precluded due to the continuing validity of the contract, and that this “premise was incorrect, the authority relied upon inapplicable, and the result mistaken”. Regarding the majority’s approach to statutory interpretation, Justice Wallis expressed the hope that the decision did not signal “any return to literalism in statutory interpretation.”
Fifty-nine year-old Majiedt graduated with an LLB from the University of the Western Cape in 1983. He served as an advocate at the Cape Bar from 1984-1996 and as the Chief Provincial State Law Adviser to the Northern Cape Government from 1997– 2000. He was appointed to the Northern Cape High Court in 2000 and the Supreme Court of Appeal in December 2010.
April 2019 Interview:
April 2019 Interview Synopsis:
Approaching interviews at the Judicial Service Commission (JSC) in a breezy, jocular manner, perhaps with a biblical reference or two dropped like cinnamon sprinkles on cappuccino foam, usually works a charm.
It did for Supreme Court of Appeal (SCA) Judge Stevan Majiedt, who was nominated to president Cyril Ramphosa for potential appointment to the Constitutional Court.
Majiedt, as was mandatory for all Constitutional Court candidates who have served any time at the SCA, was asked about the fractious state of the appellate court for most of his interview.
He said there were “two sides of the coin” at the SCA when it came to a lack of collegiality there, mentioning a recent “unpleasant episode” with an acting female judge being shouted at by a senior judge as an example of the rude and elitist behaviour at the court which needed to be eradicated. Majiedt said he was “aghast” at what had been said to the female judge and had also been “ashamed to be on the Bench” because of the manner in which a senior judge had spoken to a male acting judge during a trial.
But, on the other side, Majiedt intimated that there was justifiable discontent and frustration among judges who were carrying heavier workloads while others slacked off: “We must all pull our weight, we must all do our work,” he said.
Of an alleged “Top Six” at the SCA, Majiedt said “they give the nicest cases that involve law and precedent to themselves and by the time it comes to you, you must be satisfied with the breadcrumbs”. He suggested appointing specific senior judges to “mentor” younger acting ones to bridge the divide between them and told the commission that the divisions, “sometimes, were not so much about racism but intellectual superiority and ego”.
Justice Minister Michael Masutha suggested to Majiedt that he had the kind of sensitivity to remain in the SCA and help “normalise” the situation there, rather than get promoted, but Majiedt was adamant that he was ready, and very willing, to serve his country at its apex court.
Mogoeng then observed that Majiedt was a “First People’s” descendent and that their representation was missing at the Constitutional Court. A long exchange ensued during which Majiedt noted the apparent distinctions within, and his aversion to, the “coloured” classification and that of the First People’s et cetera, he made clear to the commission that he considered himself Black and hoped to be appointed for his record and ability, rather than to fulfil a racial obligation.
April 2017 Interview:
April 2017 Interview synopsis:
Judicial Service Commission watchers would have been forgiven for mistakenly believing that Judge Stevan Majiedt was being interviewed for the deputy president vacancy at the Supreme Court of Appeal (SCA).
The majority of his questions revolved around the racial divisions in at the appellate court, following the revelations by acting SCA president Mandisa Maya during her interview for permanent appointment, of severe racial fractures there.
“There is a long way to go. In that court, there are attitudes of superiority and inferiority,” Majiedt observed, “unfortunately we do have groups in that court… it’s not only about race, its also about people’s attitudes about your not belonging there.”
He later described the atmosphere at the appellate court by adding that in their more patronising moods “some colleague pats you on the head like a ‘good little blackie’ (sic) and says you have written a good judgment”.
Asked by commissioner Thoko Didiza, an ANC MP, to comment on how the property clause in the Constitution was “crafted” and whether it aided or inhibited land reform, Majiedt said it was a “good clause” which was debated extensively at the Convention for a Democratic South Africa before South Africa’s transition form apartheid to democracy.
Majiedt said that even if a “willing seller, willing buyer” basis had not been established, land could be expropriated for reform, as long as there was “reasonable compensation” for that land.
He did point out to the politicians on the JSC that he felt that one of the major stumbling blocks to land reform was government’s lack of capacity to deal with the number of claims and the sometimes toxic self-interest that surrounds some claims — especially on land that may be mineral rich.
Responding to questions about his tiff with Northern Cape High Court Judge President Frans Kgomo , he said they had buried the hatchet and were now “the best of friends” — something which Kgomo, who is attending his final commission sitting before retirement, confirmed later.