Capacity: Judge
First appointed as Judge: Gauteng High Court (October 2024)
Gender: Female
Ethnicity: White
Date of Birth: September 1979
Qualifications: BA (International Studies)(2002), LLB (2004), LLD (2009)(Stellenbosch University)
Key Judgments:
- Seale and Another v City of Johannesburg Metropolitan Municipality and Another (2023-078684) [2023] ZAGPPHC 965 (25 August 2023)
- Regona Properties (Pty) Ltd and Another v City of Johannesburg Metropolitan Municipality and Another (2023-074510) [2023] ZAGPJHC 877 (4 August 2023)
- Engelbrecht NO and Another v Naidoo and Another (2023 – 066208) [2023] ZAGPJHC 866 (3 August 2023)
Candidate Bio (Updated September 2024)
Judge Wilhelmina Elmien Jacoba du Plessis Is a judge of the Gauteng Division of the High Court.
Judge du Plessis has rich experience within academia and education, focusing predominantly on issues of property law under the constitutional scheme. She has taught and researched at various universities in South Africa, currently a Professor of Law at the University of Pretoria having joined after her professorship at North-West University. Du Plessis taught at the University of Johannesburg for more than 10 years, first as a Senior Lecturer and then Associate Professor.
During her time in academia, du Plessis has supervised a range of postgraduate students and taught at various levels of undergraduate and postgraduate studies. At NWU, du Plessis was a member of the Task Team on Gender-Based Violence and the Human Rights Committee. Du Plessis is the quintessential lifelong academic, with an extensive list of publications to her name ranging from peer-reviewed articles to book chapters in national and international publications and conference papers. She is the co-editor of two books: Indigenous Knowledge and Intellectual Property and Principles of the Law of Property.
Judge du Plessis has carved out a career with a specialisation in property law issues, dealing with land reform and expropriation and constitutional property. From 2009 to 2010, du Plessis was a Post-Doctoral Research Fellow at the South African Research Chair in Property Law at Stellenbosch University. While property law has remained the golden thread throughout her career, du Plessis’s work covers African customary law, administrative law, common law and the interactions both between these spheres and within the constitutional framework. Her research prowess has been recognised by the NRF who awarded her the Thuthuka Grant for research on property and environmental conservation. Du Plessis has also undertaken research stints at the Max Planck Institute for Comparative Public and International Law in Heidelberg, and the International Union for Conservation of Nature’s Environmental Law Centre in Bonn, both in Germany.
Judge du Plessis’ research interests have directed her work towards arguably the most contentious and pertinent issue of the post-1994 South African legal landscape; questions of land redistribution and the legacies of spatial apartheid. Du Plessis has served as an expert advisor to the President Panel on Land Reform and Agriculture, advising on land expropriation and the constitutional amendment to Section 25, and has made representations to Parliament on the amendment and the Expropriation Bill.
While du Plessis has spent her career as an academic, she was admitted as an advocate of the High Court in 2005. In 2022, du Plessis began serving as an acting judge in the Gauteng High Court. She has served for a total of 39 weeks and written 59 judgments.
In Regona Properties v City of Johannesburg Metropolitan Municipality du Plessis heard an urgent application to compel the first respondent to reconnect the second applicant’s electricity supply. The second applicant – who was renting property from the first applicant – had disputed the electricity charges issued by the first respondent. The second applicant began paying the first respondent based on the former’s own checking meter, as it alleged that the first respondent was overcharging. After several pre-termination notices and attempts to settle the dispute, the first respondent disconnected the electricity supply.
Du Plessis accepted that the matter was urgent. Du Plessis moved on to discuss the duties owed by a municipality, such as the first respondent, in terms of section 73 of the Municipal Systems Act. The Act also provides for credit control and debt collection, which are governed by Electricity and Credit Control and Debt Collection by-laws. These by-laws provide for an obligation, inter alia, to ensure accurate meter consumption.
Where the applicants have flagged potential inaccuracies in the meter readings, du Plessis reasoned that the onus is on the municipality to show that the meter readings are accurate. A consumer could not be responsible for proving the accuracy of meters that belong to the municipality. The applicants are, therefore, not required to pay the disputed amount until that onus has been discharged.
Du Plessis granted the interdictory relief and ordered the immediate restoration of the electricity supply and an accurate reporting of the meter reading provided by the first respondent to the applicants.
In another urgent application to the court, du Plessis granted the restoration of the status quo ante of the applicants’ possession and structures on land and an interdict against eviction. In Seale v City of Johannesburg Metropolitan Municipality, the applicant community was a group of 250 households, around half of which female-headed, comprised of impoverished and unemployed individuals whose plight was exacerbated by the pandemic. After the applicants settled on the property, the respondents ordered their dwellings to be demolished on the basis that they were uninhabited. There were also regular eviction orders. The applicants disputed that the dwellings were uninhabited.
The applicants sought relief on the basis of section 38 of the Constitution – the rights of housing and property. On urgency, du Plessis reasoned that “being rendered sporadically homeless is urgent.” Moving to the infringement of constitutional rights, du Plessis found that the respondents, as a municipality, had failed to comply with section 7(2) of the Constitution which places on municipalities the duty to protect the Bill of Rights. Specifically, the respondents evictions fell foul of sections 25 and 26 as well as section 10.
Du Plessis concluded with the following:
The Constitution not only changed the paradigm of eviction from criminalising occupation to criminalising unlawful eviction, it also requires us to reconsider how we refer to people who unlawfully occupy land. In Port Elizabeth Municipality v Various Occupiers, the Constitutional Court stated that PIE expressly requires the court to “infuse elements of grace and compassion into the formal structure of the law”. Constantly unlawfully evicting vulnerable people, demolishing their homes, and loading the material onto trucks or burning them on site is the opposite of grace and compassion.
Du Plessis granted the order for restoration and, in the case that the respondents cannot undertake reconstruction itself, they are ordered to pay the applicants R1500 per shelter for restoration.
It may be interesting to see how the JSC will view du Plessis’ relatively long list of reserved judgments, as this has often come up in interviews with other candidates. What may be more intriguing, is how the JSC will assess du Plessis’s readiness. Her academic experience is illustrious, but are more acting stints necessary? Or perhaps her niched expertise, although conducive to a career in academia, hampers judicial function.
October 2024 Interview:
October 2024 Interview Synopsis:
From the outset of her Interview, du Plessis impressed and charmed the JSC with her calm demeanour never faltering and her informed answers disarming them. In her acting stints she wrote 91 judgments on a wide variety of law which CJ Maya remarked was ‘prolific’. This she accomplished in 49 weeks of acting and completed all of them within the three month period.
Judge President Tlaletsi commented that her experience in the academic field is quite impressive. He asked for her opinion whether it is beneficial to have acting experience in the High Courts to get a feel for the legal process rather than going straight to the Constitutional Court? Du Plessis explained that the 17th amendment broadened the jurisdiction of the Constitutional Court to be very vast. She went on to explain that it is difficult to be an academic that knows everything which will allow you to go straight to the Constitutional Court. This, she elaborated, is because as an academic you don’t specialise in all areas of law, she believes going straight there would be very difficult.
Despite Adv Pillay SC and Adv Ngcukaitobi SC commending her good judgment writing, Pillay also pointed out that a specific case where du Plessis included an addendum to the case providing a layman’s explanation of the judgment. Du Plessis did this because the judgment’s decision resulted in children needing to be relocated and she wanted them to be able to understand why. Du Plessis explained that the addendum does not form part of the reasoning of the judgment. With interest in how addendums can be included in South African judgments, CJ Maya asked whether the contents of an addendum differ to those included in a media summary? Du Plessis explained that the difference lies in the target of each of these explanatory tools.
Prof du Plessis’s PhD focused on expropriation without compensation, this was raised by CJ Maya in the first two minutes of her interview and set the scene for many of the questions that followed. Commissioner Mmoiemang asked “what the role of expropriation is in transformative south Africa and whether it is adequate enough to empower expropriation constitutionally?” “Sometimes when people speak about expropriation there is no clarity where in the land reform process it fits in. […]. Expropriation is a method to acquire the land, and once the land is acquired then it is distributed or returned or whatever the case might be. In as far as it plays a role in that process, it plays a role in how the land will be acquired, if that land is acquired, what type of compensation will be paid and that then gets us to s25(1).” Responded du Plessis. She went on to explain that the Expropriation Act gives us the power to expropriate, but the Act is needed to be updated. The Expropriation Bill she believes goes further in including all the different relevant factors.
Prof du Plessis was successful on her first appearance before the JSC.
