Capacity: Judge
First appointed: 2016 (Western Cape High Court)
Gender: Male
Ethnicity: Black
Date of Birth: July 1971
Qualifications: B.Proc (WSU) Postgrad Dip. (Corporate Law)(Unisa) LLM (Commercial Law)(UCT) Cert. (Insolvency Practice)(UP)
Key judgments:
- eMedia Investments Pty (Ltd) v Multichoice Pty (Ltd) (201/CAC/JUN22) [2022] ZACAC 9; [2022] 2 CPLR 23 (CAC) (1 August 2022)
- Public Protector of South Africa v Speaker of the National Assembly (8500/2022) [2022] ZAWCHC 180; [2022] 4 All SA 417 (WCC) (9 September 2022)
- Tiso Blackstar Group (Pty) Ltd v Steinhoff International HoldingsV (18706/2019) [2022] ZAWCHC 265; 2023 (1) SA 283 (WCC) (10 May 2022)
- Courier-It S.A (Pty) Ltd v Frankees (Pty) Ltd (17044/2020) [2021] ZAWCHC 138 (8 July 2021)
- Maxwele v University of Cape Town (11766/2015) [2015] ZAWCHC 200 (15 September 2015)
Candidate Bio:
When the shit hit the, um, statue, Western Cape High Court Judge Lister Nuku was given the job of cleaning up.
While acting on the Western Cape Bench, Nuku set aside the University of Cape Town’s (UCT) suspension of #RhodesMustFall activist and the guy who flung the first bit of poo in the protest that eventually led to the removal of the Cecil John Rhodes statue from campus, Chumani Mxwele.
UCT had alleged that Maxwele had racially abused and threatened a lecturer in May of 2015. Nuku found that Maxwele’s second suspension hearing was “tainted with bias” and that jurisdictional requirements for the suspension had not been met.
Nuku was admitted as an attorney in 1996, after working as a candidate attorney at two Cape law firms. From 1999 until 2016 he was a partner at the law firm Nongogo, Nuku Incorporated, where he was Western Cape Judge President John Hlope’s attorney in his ongoing legal battles with the Constitutional Court.
Nuku was active in the Black Lawyers’ Association and Black Conveyancers’ Association, holding several executive positions at branch level.
From 2010 – 2015 he served as a councillor on the powerful Cape Law Society, and from 2014 to 2015 he was a councillor of the Law Society of South Africa.
Nuku was permanently appointed as a judge of the Western Cape High Court in 2016.
Nuku set the cat among the pigeons when he (with fellow judges Francis and Lekhuleni) found that President Cyril Ramaphosa’s decision to suspend Public Protector Busisiwe Mkhwebane was “tainted with bias” as it followed shortly after she had sent 31 questions about the alleged money laundering scandal on the president’s Phala Phala farm.
When weekly business publication Financial Mail wanted access to the forensic report into Steinhoff International, South Africa’s biggest corporate scandal that led to billion-dollar losses, it fell on Nuku to decide whether the journalists could have a peak at the report. After analysing the legal authorities, Nuku found that the Promotion of Access to Information Act gave the journalists the right of access to the information in the report – and that Steinhoff could not use legal privilege to deny them access.
Nuku took up an acting stint at the Competition Appeal Court in January 2022, and is now seeking permanent appointment to the court. While at the CAC he wrote the dissenting judgment in eMedia Investments v Multichoice a ground-breaking battle where upstart eMedia Investments accused broadcasting behemoth Multichoice of abuse of dominance (a prohibited practice in competition law) for removing 4 channels owned by eMedia Investments from its DStv platform.
Nuku found that the Competition Act did not impose a duty on Multichoice to acquire eMedia’s channels beyond the normal requirements that enhance competition in the market. He found that there was no abuse of dominance and would have dismissed eMedia’s claim.
The majority judgment (penned by Judge Victor, with Judge Manoim concurring) ruled in the opposite direction, finding that Multichoice’s decision had the effect of reducing competition in the market as small broadcasters like eMedia would struggle to have access to satellite television services of the same scale as Multichoice’s DStv platform.
The Libode, Eastern Cape-born Nuku holds a B.Proc law degree from Walter Sisulu University, a postgraduate diploma in Corporate Law from Unisa, an LLM in Commercial Law from the University of Cape Town, and a specialised certificate in Insolvency Law and Practice from the joint programme of the University of Pretoria and the South African Restructuring and Insolvency Practitioners’ Association.
April 2023 interview
Judge Lister Gcinikaya Nuku’s interview was successful. The JSC has recommended him for appointment to the Competition Appeal Court:
April 2016 interview
Interview Synopsis:
Justice Minister Michael Masutha noted that Nuku “didn’t stick out as an agent of change” and asked him whether he had “actively used your position to promote black and female people” in the profession.
Nuku responded that he had, in fact, done that, and had “recruited mostly female candidate attorneys, a number of them, expect one,” was a Black African, he said: “I have played my part, as smallish as it can be,” he said modestly
He was also asked to describe his childhood, which included growing up in an impoverished part of the Eastern Cape by Economic Freedom Fighters MP Julius Malema, who stated that the intention of the questions was to allow “you to speak to the African masses out there” to inspire them.
Nuku told the commission that he believed state parastatals that didn’t necessarily use the State Attorney’s office in litigation should be convinced to “play a bigger role” in briefing black attorneys and advocates to ensure they gained experience which would allow the pool of black and female candidates available for appointment to the Bench to be widened.
An ANC member, Nuku said he would resign from the party, if appointed. He also expressed finding little difficult in writing judgments or dealing with the range off matters he had ti adjudicate while acting at the Western Cape High Court.
