Current Position: Deputy Judge President of the Western Cape Division of the High Court
Appointed: April 2016
The Western Cape High Court’s deputy judge president has spent an entire year acting at the Constitutional Court. She is one of few judges to have had such a privilege during a long period of vacancies being left open at the court so as to “widen the pool of candidates”, according to Chief Justice Mogoeng Mogoeng.
It was surprising that Rahube v Rahube and Another, which appeared a no-brainer heard on May 17, 2018, was only delivered on October 30, 2018. In that case, the Constitutional Court was asked to confirm the unconstitutionality of Section 2 (1) of the Upgrading of Land Tenure Rights Act.
The section prohibited people who had substantial interest in land, but were not certificate or deed holders, from acquiring ownership of those properties. The exclusion was inherently gendered because, in terms of the apartheid-era proclamation, women could not be the head of a family, and thus, could not have a certificate or deed of grant registered in their name.
Goliath found that to read the proclamation as gender-neutral “would not cure the discrimination that occurred previously [during apartheid] and, since the Upgrading Act is based on the position as it was during apartheid, would not render the Act constitutionally compliant.”
The section was held to be constitutionally invalid due to its inconsistency with section 9(1) of the Constitution, the right to equality. Goliath held that, as it was possible that property ownership since the enactment of the Act may have ended up vesting in African women, it was necessary to limit the retrospectivity of the declaration of invalidity. The list of exceptions provided by the high court was extended, and the suspension of the declaration of invalidity for 18 months was confirmed.
In 2015, three opposition parties challenged the rules of the national legislature regarding a tabling of a motion of no confidence in President Jacob Zuma in Tlouamma v Speaker of Parliament.
The application, heard in the Western Cape High Court, also challenged the decision by the house speaker, Baleka Mbete, not to schedule the vote before the end of that parliamentary term and sought to have the court declare that such votes be conducted by secret ballot.
Writing a unanimous judgment for a full bench, Goliath was mindful of the separation of powers doctrine in dismissing the case and noted that the court “would be unduly prescriptive to the Speaker and the National Assembly as to how and when to schedule its own business,” if it found for the opposition parties.
Goliath found that, as the case raised matters of constitutional import and “indeed adds texture to what it means to be living in a constitutional democracy,” each party should pay its own costs.
Her mindfulness of the separation of powers doctrine was, however, considered unduly deferential to parliament by the Constitutional Court in its ruling in the 2017 matter, United Democratic Movement v Speaker, National Assembly and Others.
In that case Mbete had argued that neither the Constitution nor the rules of parliament allowed her to authorise a vote by secret ballot in yet another motion of no confidence against Zuma. The Constitutional Court held this view was mistaken, and that “[t]he only real constraint that stood in her way was the Tlouamma decision.” The court found the speaker did have the power to authorise a vote by secret ballot in appropriate circumstances, and that “[t]o the extent that Tlouamma might have been understood to have held that a secret-ballot procedure is not at all constitutionally permissible, that understanding is incorrect.”
Goliath is no stranger to the media spotlight, having adjudicated some of the country’s most high-profile and contentious criminal cases. These included convicting artist Zwelethu Mthethwa of kicking and beating to death sex-worker Nokuphila Kumalo in 2013, and the rape and murder case of Bredasdorp teenager Anene Booysen.
The latter trial had especially captured the public’s attention and sympathy, and in sentencing the perpetrator, Johannes Kana, to two concurrent life terms, Goliath said: “You show no remorse for these actions. Instead, you went ahead and tried to hide your complicity in the murderous attack on Anene.”
Goliath was one of seven female judges featured in the documentary film, Courting Justice, which examined the challenges women face in the judiciary. In her successful April 2016 interview for appointment as Western Cape deputy judge president she told the Judicial Service Commission that she “cannot recall one instance when female counsel appeared” before her on a commercial matter, saying this demonstrated there was, “regretfully”, no transformation at the Cape Bar. This, she said, was one of the indicators that the Bar should provide support, assistance and mentoring to “address the paucity of black female advocates specifically”.
The fifty-four-year-old attended Athlone High School and obtained a BA. LLB at the University of Western Cape and her LLM degree and certificate in Labour Law at the University of Cape Town. She practiced as an attorney at her own firm from 1990 to 2005, and was appointed to the Western Cape Bench on January 1, 2006.
She has an interest in human rights issues and has published in the South African Legal Journal on topics including the rights of prisoners of war, gun control, and juvenile sentencing and life imprisonment.
April 2019 Interview:
April 2019 Interview Synopsis:
With interest growing around the appointment of judges to South Africa’s highest court, attendance in the public gallery grew for the round of Constitutional Court interviews. Many first-time visitors to the Judicial Service Commission’s (JSC) proceedings would have been forgiven for thinking that they had landed in a session at a charismatic Church — such was the fervour of Chief Justice Mogoeng Mogoeng’s many tangents during Western Cape deputy judge president Patricia Goliath’s interview.
Mogoeng spoke for large swathes of Goliath’s interview so as to comment on varying matters including his fear that there is a “campaign” and “concerted effort” to “attack” and “discredit me”. He said therefore he only reads academic articles “sparingly” and that academic criticism of commercial law judgments coming out of the Constitutional Court was “about protecting that system of law” which was “untouchable” because it also protected the associated privilege.
Sometimes, after a diatribe from the chief justice, Goliath merely sat nonplussed or nodded agreement, with nothing to answer.
When Goliath was asked questions that dealt with her suitability to be appointed to South Africa’s most important court she performed adequately — her responses in no way suggested some divine inspiration.
She was asked by Sifiso Msomi, one of four presidential designations to the JSC, to comment on the “controversies concerning Constitutional Court judgments” including whether it was right for the apex court to deadlock —and make jurisprudential mistakes — in Jacobs and Others v S which was handed down on Valentines Day in 2019. She did not deal with fracture from the court’s previous jurisprudence which the judgment represented.
Goliath said deadlocks were common in other courts, like the Supreme Court in the United States and that while it was “regrettable”, it was a new phenomenon and the court “will learn a lot of lessons” from the experience.
Msomi also asked Goliath for her understanding of the principle of the separation of powers which was “not a dictionary meaning” and to give examples from her judgments which dealt with this doctrine. Goliath, channelling the dictionary, said the principle “recognised the functional independence of the different arms of government”. It also recognised the possibility of intrusions into, and tensions between, the different arms of government. She gave the Outa judgment (which she was not involved in hearing or writing) handed down by the Constitutional Court which dealt with e-tolling, as an example of the judiciary being mindful of not trespassing into the ambit of the executive.
Later, pressed by ANC member of the national council of provinces Jomo Nyambi, on one of her judgments which dealt with the separation of powers, Goliath cited the Tlouamma v Speaker of Parliament judgment which she handed down in the Western Cape High Court. It dealt with the a vote-of-no-confidence against former president Jacob Zuma (see profile).
Commissioner Dali Mpofu noted that the Constitutional Court had been critical of that judgement in the 2017 matter, United Democratic Movement v Speaker, National Assembly and Others.
Goliath said the Constitutional Court had “clarified” the aspect of the secret ballot and that while she had been unable to find it in the parliamentary rules, the apex court had ruled it was covered, as an option, in Rule 104.
SCA justice Azhar Cachalia asked Goliath if she was aware of the academic criticisms of the Constitutional Court’s judgments in private law matters. Goliath said she was not aware of these criticisms.
“Surely you should at least be inquisitive in how the judgments of the Constitutional Court are perceived and if there are criticisms have substance or don’t have substance?” asked Cachalia.
Goliath responded that she was not “completely oblivious” but was not aware of any criticisms that the court needed more judges with experience in areas like delict and commercial law.
Aside from being asked further questions about her thoughts to customary law and why it was not being developed to its full potential (“its always a challenge”), Goliath otherwise fielded questions which had very little to do with her suitability for appointment.
Goliath refused to take any blame for the backlog in handing down judgments at the Western Cape bench, reiterating that she had spent all of 2018 acting at the Constitutional Court and had been on long leave in 2019. She said the division otherwise ran like a “well-oiled machine”.
April 2016 Interview:
April 2016 Interview Synopsis:
Goliath was nominated for appointed as deputy judge president of the Western Cape division after a rather tame interview compared to some of her other colleagues.
Responding to a series of questions posed by Supreme Court of Appeal president Lex Mpati that related to the administrative elements of the position, Goliath said:
She would first seek out from offending judges the reasons for overlong reserved judgments by judges, before remedying by restructuring work programmes and providing whatever other support necessary. If the problem persisted, she would eventually report the judges to the office of he chief justice.
Described herself as a “team player who gets in well with people” and capable of ensuring collegiality and unity on the Western Cape Bench.
Said she “cannot recall one instance in when female counsel appeared” before her on a commercial matter, and mourned that this demonstrated there was, “regretfully”, no transformation at the Cape Bar. This, she said, was one of the indicators that the Bar should provide support, assistance and mentoring to “address the paucity of black female advocates specifically”.
Would allocate cases to judges in the division according to various criteria, including matching complex cases with senior judges, considering the nature of a case, and if it were in the oubkic interest, “ensure you should have a diverse Bench”, and ensuring that judges did get exposure to a range of different types of legal matters so that each could gain experience and grow as a judge.