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Judge R M Keightley

Capacity: Judge
First appointed as judge: January 2016 (Gauteng High Court, Johannesburg)
Gender: Female
Ethnicity: White
Date of Birth: November 1961
Qualifications: BA (1982) LLB (1984) (UKZN) LLM (Cambridge, UK)

Key judgments:

Candidate Biography | updated May 2024:

Justice Raylene Keightley is a judge of the Gauteng High Court, Johannesburg.

Born in Kokstad, a small farming town on the border of KwaZulu-Natal and the Eastern Cape, Keightley was already fluent in isiXhosa by the time she got to high school in Mthatha in 1979. However, over the years, as she moved further away from Kokstad, her isiXhosa fluency diminished, and so did any appearance of a village girl that she grew up as.

Keightley’s legal career can be described in three key waves, which shows her dynamism. The first wave is her academic career as a law professor, the second wave is her career in practice as an advocate, and the third is her judicial career.

The first wave

The first wave starts when Keightley obtained a BA degree (1982) and an LLB degree (summa cum laude) in 1984, both at the then University of Natal – the first in her family to reach university.

Keightley then moved to Cape Town, where she trained briefly as a candidate attorney (1985 – 1986) and later as an attorney at boutique law firm Balsille, Watermeyer & Cawood Inc.

She was awarded a scholarship to read for an LLM degree at Cambridge University in the UK, which she obtained first class in 1988.

She returned to South Africa in 1988 and started an academic career that would span the rest of her career (on and off) before she was elevated to the Bench.

She first joined the academic staff at the University of Cape Town as a junior lecturer (1988 – 1991) and then senior lecturer (1991 – 1995). She then moved to Wits University as senior lecturer (1996 – 1999) and then associate professor (1999 – 2011).

As an academic shortly before the dawn of democracy in 1994, Keightley wrote extensively to document the horrors of the apartheid legal system but also in preparation of the democratic dispensation. In papers published from 1989 to 1995, Keightley published five research papers in the SA Journal on Human Rights on issues including violent government clampdowns on political activism, negative judicial discretion in mob violence sentences, hangings as capital punishment in late apartheid, and the use of torture by police.

In a 1992, she published in the SAJHR a paper titled International Human Rights Norms in a New South Africa, which instructive on the role of international law in applying the human rights framework that would be ushered in.

According to her JSC application form for promotion to the SCA, Keightley notes that as an academic she has published 2 books, 16 book chapters and 11 journal articles. Several of these publications have been cited with approval by judgments of the courts.

The second wave

The second wave of Keightley’s career begins on her departure from fulltime employment as a law professor at Wits University to starting the Asset Forfeiture Unit within the National Prosecuting Authority in 1999.

Starting off as a senior state advocate (Dec 1999 – Oct 2001), she was later promoted to Deputy Director of Public Prosecutions (Oct 2001 – Oct 2003) and the regional head of AFU in Johannesburg (2003 – 2006), then the biggest office nationwide. In addition to establishing the office, Keightley was instrumental in testing some of the early cases on civil asset forfeiture in criminal cases in South Africa.

She left the NPA to return to Wits as director of the Centre for Applied Legal Studies, one of SA’s premier human rights law firms. She continued to practice part-time as an advocate, focusing on constitutional law, administrative law, commercial law and human rights.

The third wave

The third wave of Keightley’s career begins when she starts taking judicial appointment in the Gauteng High Court, Johannesburg. First, intermittently as an acting judge (Oct 2014 – Aug 2015) and later, permanently in January 2016.

Not all parents are happy with Keightley’s judgment in YG v State, the so-called ‘spanking’ judgment which outlawed case corporal punishment in the home.  The concerned a parent who raised the common law defence of ‘reasonable chastisement’ in response to a charge of assault against his minor child. The question was whether the common law defence was in line with the constitution, particularly children’s rights? After analysing the law on the issue, including the common defence, Keightley found the defence to be incompatible with the constitutional and no longer application in our law. On appeal by religious NGO Freedom of Religion SA, the Constitutional Court upheld Keightley’s judgment, confirming that spanking kids in the home is now punishable by law.

Keightley has written several more judgments on a variety of legal fields including constitutional law, consumer credit law, delict, and civil procedure, among other fields.

As a senior judge of the High Court, she also serves as presiding judge in appeals, gaining valuable appellate judicial experience.

From July 2023 until April 2024, she held a stint as an acting judge of the Supreme Court of Appeal, and wrote 6 judgments, including a dissenting judgment.

In Nedbank v Surve, an appeal against an interim order of the Equality Court, Keightley was faced with the question of what to do with an interim order that confirms far-reaching allegations the appellant, should it remain in place? In the case, businessman Iqbal Surve accused Nedbank of closing his and his company’s bank account because of racism, and not the vague ‘reputational harm’ they alleged. He therefore went to the Equality Court seeking an interim order keeping his accounts open until the issue was finally resolved. The Equality granted the order, on the grounds that Nedbank had practiced racial discrimination which violated the constitutional right not to discriminated against. Nedbank took this on appeal.

On appeal, Keightley examined the appealability of interim orders and found that, even though the law did not ordinarily allow interim orders to be appealable unless the met the requirements of the strict Zweni test, together with the more flexible interests of justice test.

In setting aside the Equality Court’s interim order she said:

The equality court found, albeit on a prima facie basis, that Nedbanks decision to close the respondents accounts was based on unfair racial discrimination. This is a serious charge. Racism is a scourge which has infected the fabric of our national life for well over three hundred years. The Equality Act was specifically devised, in part, to address and eliminate this scourge. Any order under this section of the Equality Act requires a finding that the entity against which the order is granted has unfairly discriminated on the ground of race. A finding of that nature has obvious serious reputational repercussions, particularly considering Nedbanks standing as one of the major banks in South Africa. Where a case is properly made out for an order having this effect, a party cannot be heard to complain. However, where, as in this case, the order ought never to have been made, justice requires that the impugned decision is rendered appealable and rectified.

The General Council of the Bar in its review of candidates for the various courts usually offers witheringly critical commentary. In respect of Keightley, ahead of the JSC interviews in May 2024, they repeat the criticism of the SCA of her Afrirofum case, but offer the following as a parting shot:

It is not often that candidates have a wealth of knowledge and experience across academia, attorney’s practice, advocate’s practice, State practice, private practice, civil society, criminal law, and civil law. This candidate does. She has achieved excellence in each of the sectors in which she has practised. Her contributions to academia, civil society, and state and private practice are significant. She is liked and respected as a member of the bench in the Gauteng Division and every indication is that her contribution to the appellate court will be equally significant.

May 2024 Interview | SCA Interview

Judge Keightley had an excellent interview. She skilfully answered all the questions posed by the commissioners, displaying the full depth and breadth of her knowledge and skill.
SCA President Judge Molemela asked what special attributes she would bring to the SCA, especially in light of the recent loss of so many experienced judges and expertise from the court? Judge Keightley responded: “I think I am quite uniquely suited in that regard. I have many years of legal experience, across diverse fields. It is this diversity that has made me the judge I am today.” “I am used to leadership. I am able to act independently. My skill set is such that I can hit the ground running. And, my knowledge spans the full gamut of the law. I have written on the gamut of the law.”

After deliberations, the JSC decided to appoint Judge Raylene Keightley to the Supreme Court of Appeal.