Capacity: Judge
First appointed as a judge: 2009, (Gauteng, Johannesburg)
Gender: Female
Ethnicity:
Date of Birth: 16 October 1968
Key judgments:
- Florence (Dodgen) v Broadcount Investments (Pty) Ltd and Others (LCC 148/08) [2012] ZALCC 11 (5 June 2012)
- Nono Cynthia Mañana v Presiding Officer of the Children’s Court, Krugersdorp & Others 2013(4) SA 379 (GSJ)
- CDH Invest NV v Petrotank South Africa (Pty) Ltd 2019 (4) SA 436 (SCA)
- Emantanjeni Community v Commission on Restitution of Land Rights and Others (LCC 17/2018) [2019] ZALCC 31 (8 November 2019)
- Mpume v Drakenstein Municipality and Another (128/2014) [2016] ZALCC 11 (24 June 2016)
Candidate Bio:
Gauteng High Court judge Zeenat Carelse has had to be tenacious to qualify to practise law, taking time after her Bachelors degree to work and raise money and a bursary to then enrol for her LLB.
Carelse is currently acting at the Supreme Court of Appeal until May. She previously acted there from October 2018-March 2019. She has also acted as a judge of the Land Claims Court from 2009 until the present.
In the 2012 Land Claims Court matter of Florence (Dodgen) v Broadcount Investments (Pty) Ltd & Others there were four major issues the court had to desalt with in this claim for the restitution of land taken from the Florence family in 1970.
These included: 1) The loss suffered by the plaintiff as a result of the dispossession of their rights and whether such loss would equate to just and equitable compensation, calculated at the time of dispossession, 2) the appropriate method used to calculate the value of the 1970 loss into present day value, 3) the amount of financial restitution the family should receive as consolation due to the hardship they suffered as a result of the dispossession 4) whether the second respondent (the government) could be ordered to pay for the costs relating to the erection of a memorial plaque.
After establishing that the applicant had been dispossessed Carelse then held that, according to the evidence, the purchase price had been paid in full at the time of the dispossession.
She found that “when interpreting a constitutional right such as the right to restitution the interpretation should be generous rather than a legalistic one, aimed at fulfilling the purpose of a guarantee and securing for individuals the full benefits of their constitutional rights.”
The “inescapable conclusion” was that equitable redress for the family should be the amount of their 1970 financial loss, escalated to its present day value”
In calculating this Carelse referred to the Farjas judgment, a case which determined that the Consumer Price Index (CPI) adequately caters for change in the value of money over time. The CPI was used to determine the value of the loss of the land over time.
Regarding the third issue, of a consolation payment or solatium, Carelse emphasised its symbolic nature and found further that “[t]he Florence family life was disrupted and the family was split up…the Florence family suffered emotionally, financially and psychologically by the forced removal”. The claimants were thus awarded R10 000.
Carelse declined to award the costs of a memorial plaque, on the basis that those costs had been agreed to between the plaintiff and defendant in a private settlement agreement and that the court lacked the jurisdiction to make such an order.
The matter was taken on appeal to the SCA and then the Constitutional Court. Considering the appropriateness of the CPI as a measure of the change of value of money over time the SCA found Carelse acted judiciously and held that “[i]t has already been found in Farjas that the LCC is entitled to rely upon the CPI to determine changes in the value of money, and we are bound by that decision. In these circumstances it cannot be said that the LCC misdirected itself in adopting the same approach.”
The appellate court found, however, that there was no basis for the conclusion that the LCC had no jurisdiction to order the state to pay the costs for the erection of a plaque and awarded R50 000 for this purpose.
The majority of the Constitutional Court held that the use of the CPI as a measure for the change in monetary value over time was correct. It further concluded that the LCC was correct in its finding that it had no power to order the respondent to pay for the erection of a memorial plaque, thereby reversing that part of the SCA’s decision.
According to her application form Carelse considers one of her most significant contributions to the law and pursuit of justice in South Africa to be her decision in 2013 Gauteng High Court matter of Nono Cynthia Mañana v Presiding Officer of the Children’s Court, Krugersdorp & Others.
Carelse submitted that this judgement was “groundbreaking” in that it solved one of the challenges preventing grandparents from accessing foster care grants for their grandchildren and “strengthened the legal status” of orphans.
The judge has been strong on people convicted of rape and gender based violence in judgments like S v Khanye and housing rights and eviction cases where municipalities have not fulfilled their obligations, including to provide alternative temporary accommodation for occupiers required to be evicted from buildings (Mpume v Drakenstein Municipality & Another).
The Johannesburg Bar, in their submissions on candidates to the JSC, noted that “[a] number of her judgments, including in her capacity as an acting judge of the Land Claims Court, indicate a particular competence in constitutional law.”
However, the Johannesburg Bar did have “some concerns” related to a full high court judgment that Carelse concurred with (but was not the writing judge), which was then overturned by the SCA.
“The SCA’s decision [in SAFA v Fli-Afrika] shows that the judgment was flawed, with the full court having misapplied Endumeni in interpreting the contract at issue,” the submission noted.
With a BA and LLB from the then-University of Durban-Westville, Carelse initially worked as public prosecutor (1994-1998) before joining the magistracy. She worked as a district magistrate in Johannesburg and Cape Town from 1998-2004 and then as a regional magistrate in Tembisa for four years. She was appointed to the Gauteng High Court in 2009.
April 2021 Interview:
April 2021 Interview Synopsis
The sense that what one sees is what one gets with South Gauteng High Court Judge Zeenat Carelse came across loud and clear in her successful interview for appointment to the Supreme Court of Appeal (SCA).
What one gets is a tenacious, effervescent, enthusiastic human who is not afraid to keep learning, to feed an infectious love of the law and its role in creating a more equal society.
The interview, which lasted just over an hour-and-a-half started with SCA president Mandisa Maya asking questions about some of Carelse’s judgments, including S v Khanye, which she described as “seminal”.
In S v Khanye, Carelse extended the doctrine of common purpose to include gang-rape. She said she had been troubled by the fact that if only one accused was in court — as in this case — gang-rape would not be the appropriate charge, likewise the sentence would be affected.
“This troubled me because the message was wrong,” said Carelse, noting that the survivor had testified that she had been gang-raped. She told the commission that she had researched precedent and “took the legal point” from S v Legoa and “once jurisdictional fact was established then the sentencing regime came into effect… The difference between [a] life [sentence] and ten years is huge”.
Maya also asked Carelse about her 2013 high court judgment Nono Cynthia Mañana v Presiding Officer of the Children’s Court, Krugersdorp & Others which allowed for foster-care grants to be accessed by grandparents caring for their orphaned grandchildren.
Noting that HIV-Aids had robbed an entire generation of children of their parents, and added the burden of care to their grandparents, who very often had very little money, Carelse said: “Being a judge is a very lonely job… But when you do something like that to uplift people, to create a better community for children, it does make a difference… You do feel good. Otherwise it’s a lonely job.”
On two occasions Carelse was asked about the phenomenon of a so-called “Top Six” judges at the SCA which were reputed to be aloof, and often rude, to other judges. This because of a perception that other judges were either not working hard enough or not demonstrating the intellectual and legal rigour required.
Carelse said she had, generally, been given a “warm welcome” and that aside from one “unpleasant experience with a senior colleague” regarding judgment writing, which President Maya had resolved to her satisfaction, she had no complaints.
She said she had noticed a definite change of atmosphere at the SCA during her most recent acting stints at the SCA (at the end of 2020 and the beginning of this year) when compared to her 2018 acting stint.
On her time spent at the Land Claims Court, Carelse said she had never had a judgment overturned in the 12 years she had worked there. When asked whether the Constitution currently allowed for expropriation without compensation, Carelse answered in the affirmative.
Later she was asked whether it would make a difference to South Africa’s stuck-in-the-mud land redistribution programme, to make the provision for uncompensated expropriation more explicit with a Constitutional amendment.
While Carelse saw nothing wrong with doing so, she told the JSC that there were more pressing structural and administrative issues that needed addressing, so as to speed up land reform. Including addressing the under-resourcing of the Land Claims Court.
On her approach to adjudicating and writing judgments, Carelse said: “I’ve always been open to bettering myself. I never turned down a course available to a judge… and did whatever I had to do to up my skills… In Joburg [at the South Gauteng High Court] we sit and discuss matters in the tea-room. It’s the best job in the world because you are learning every day. My father used to say: ‘My child, if you educate yourself, you liberate yourself.”
