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Judge S E Weiner

Capacity: Judge

First appointed as a judge: 2011 (Gauteng, Johannesburg)

Gender: Female

Ethnicity: White

Date of Birth: 28 January 1954

 

Key judgments:

  • Modise and Another v Tladi Holdings (Pty) Ltd [2020] 4 All SA 670 (SCA)
  • Moela and Another v Habib and Another (2020/9215) [2020] ZAGPJHC 69 (19 March 2020)
  • Manuel v Sahara Computers (Pty) Ltd 2020 (2) SA 269 (GP)
  • Cell C (Pty) Limited and Others v Prokas and Another (40902/2014) [2014] ZAGPJHC 430 (13 November 2014)
  • Recycling and Economic Development Initiative of South Africa v Minister of Environmental Affairs; Kusaga Taka Consulting (Pty) Ltd v Minister of Environmental Affairs 2019 (3) SA 251 (SCA)

 Candidate Bio:

The Covid-19 pandemic has ensured a wave of new litigation — from civil rights issues to administrative justice — entering South Africa’s courts.

A judge of the Gauteng High Court since 2011, Sharise Weiner adjudicated one such matter, involving Wits University students and the tertiary institution’s management in Moela & Another v Habib & Another, in 2020.

The matter was heard on 17 and 18 March last year with judgment being handed down the following day as the country hurtled towards lockdown before the end of that month.

The university’s senior management had given students in residences 72 hours to vacate the premises and return home. The applicants claimed that the respondents must satisfy themselves that the students had been tested for Covid-19 and were “safe to go home.”

The students also sought to extend the evacuation period “until a mechanism is devised to limit the rapid spread of the virus” and had argued that the university’s directive was a negligent and reckless response to the pandemic and posed a threat to their rights to life and of access to health care.

During argument the students abandoned their original relief sought and claimed the alternative relief of being allowed to remain in their residences and self-isolate.

Weiner found that the university’s directive was based on a decision by the senior executive team of the university, and not the vice-chancellor and dean of students who had been cited as respondents. Neither of them had the powers to alter the decision on their own or ensure the relief sought was met.

She nevertheless dealt with the matter since it was of public interest.

On the students fear of contacting the virus, Weiner noted that “the majority of people in the South Africa (and globally) are in the same situation as the applicants… The suggestions by the applicants that the way in which the University should deal with this by testing all students in residences before they are sent home, is simply not feasible. There are approximately 6 000 students in the residences. One has to take into consideration that at present, only 1 student at the University (in the medical school, which is 2 kilometres from the main campus of the University) has tested positive for SARS COV-19.”

In dismissing the application with no costs order, Weiner held that the applicants could not succeed with any of the relief sought, as it was “clear that the University has followed precisely all protocols recommended”.

Weiner was appointed to the Gauteng High Court in Johannesburg in 2011 and is currently acting at the Supreme Court of Appeal (SCA). Her previous acting stint in the appellate division was from April- December 2019.

Published in both international and local law journals, Weiner’s writing includes Talking Past Each Other? Race in Legal Academia, Practise and on the Bench, Crusaders for the Rule of Law and Women at the Bar: Where Have all the Young Girls Gone?  a 2004 paper which addressed the “startlingly low” number of female advocates entering the profession over the preceding five years.

Noting figures including that there were only six out of 126 silks at the Johannesburg Bar and 11 out of 317 senior counsel in the country at that time, Weiner described this as “astonishingly low”.

Highlighting a problem which persists fifteen years later, Weiner wrote:

“Has the profession, in general, transformed sufficiently insofar as gender issues are concerned? Certain senior colleagues are trying to implement transformation in relation to both blacks and women practising in the commercial field. They readily and willingly suggest to attorneys that the latter brief a black or female junior. The responses that some silks still receive from some of their attorneys such as ‘But this is a commercial matter!’ might be amusing if the story was of historical significance only, and if it was unusual. The problem is it still happens in 2004 and it happens more often than we think.”

“Women are increasingly choosing to practise in the commercial field as opposed to solely practising as family lawyers, but to this day they still seem to have to fight against an unjustified prejudice as to whether they are considered competent in that field. … Some have chosen to embark upon post-graduate studies in tax and company law in order to gain such expertise. This is, of course, admirable. But it does beg the question: Do women have to be better qualified and more competent to be considered equal?”

Fifty-seven year-old Weiner holds a BA (1975) and an LLB (1977) from the University of the Witwatersrand. After graduation she joined the Johannesburg Bar in 1978 and was awarded silk in 1995. She was a founding member of Lawyers for Human Rights in 1979 and vice-chairperson of the General Council of the Bar from 2000-2010.

Shortlisted for the position of public protector after Thuli Madonsela’s term had ended in 2016, Weiner responded to a question by Economic Freedom Fighters MP Floyd Shivambu about her struggle credentials by stating she had demonstrated as a student and, and an advocate had defended people for free: “I have a non-wavering belief in the rule of law and its applicability to all persons, in particular those in positions of power. I feel strongly about injustice and will endeavour to do all things to right such wrongs,” she is reported to have said.

She is a trustee and founder of the Warm the World non-profit organisation.

 

April 2021 Interview: